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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


\.-  xv  JFL  ^'Jil 


mi?  im?  j 


\ ' 


"3 


O 


the 


Doctor  and  Student 


DIALOGUES 


BETWEEN    A 


DOCTOR   OF   DIVINITY  AND   A   STUDENT  IN   THE 
LAWS   OF   ENGLAND 


CONTAINING    THE 


GROUNDS  OF  THOSE  LAWS 


TOGETHER    WITH 

QUESTIONS  AND  CASES  CONCERNING  THE  EQUITY  THEREOF 
REVISED  AND  CORRECTED 

By  WILLIAM  MUCHALL,  Gent 

TO   WHICH    ARE    ADDED    TWO    PIECES    CONCERNING 

SUITS  IN  CHANCERY   BY  SUBPCENA 

I.     A  Replication  of  a  Serjeant  at  the  Laws  of  England,  to  certain   Points  alledged  by  a 

Student  of  the  said  Laws  of  England,  in  a  Dialogue  in  English  between 

a  Doctor  of  Divinity  and  the  said  Student. 

II.     A  little  Treatise  concerning-  Writs  of  Subpcena. 


CINCINNATI 

ROBERT    CLARKE    &   CO 

1880 


,/ 


Sa 


PREFACE. 


It  is  presumed  that  no  particular  apology  is  necessary  to  be 
made  for  introducing  to  the  notice  of  the  profession  a  new 
edition  of  the  Doctor  and  Student;*  a  book  which  has  been 
considered  of  the  first  authority,  not  only  by  the  best  and  most 
admired  of  our  legal  writers,!  but  by  the  courts  of  Westminster- 
hall. 

The  species  of  composition  in  which  it  is  written  must  likewise 
add  to  its  value,  and  intitle  it  to  approbation.]:  Dialogue  is  uni- 
versally allowed  to  be  an  agreeable  method  of  writing,  which 
never  fails  to  instruct  more  than  any  other,  by  its  peculiar  tendency 
to  make  a  more  favorable  and  lasting  impression  upon  the  mind. 

Perhaps  the  language  is  not  so  pure  as  might  be  expected  from 
a  modern  author,  nor  so  correct  as  altogether  to  adapt  itself  to 
the  taste  of  the  curious.  But  this  is  a  defect  (if  a  defect  it  can 
be  called)  which  should  be  overlooked  for  the  intrinsic  merits  of 
the  book  itself.  Coke  upon  Littleton,  and  the  ancient  Reports, 
which  contain  such  a  variety  of  matter,  and  such  a  fund  of  legal 
information,  are  not  perhaps  superior  in  point   of   style   to    the 

*  The  original  author  was  Christopher  Saint  Germain,  of  the  Inner 
Temple,  a  barrister  of  such  extensive  knowledge  in  the  laws  of  his  country, 
that  he  was  supposed  to  be  equal  to  most  men  of  his  time.  Soon  after  his 
book  was  published,  (which  was  in  the  year  1518,)  he  was  engaged  in  a 
smart  controversy  with  a  Serjeant  at  law  relative  to  a  point  of  doctrine 
advanced  by  him  in  the  twelfth  chapter  of  the  first  dialogue,  the  par- 
ticulars of  which  maybe  seen  in  the  first  volume  of  Mr.  Hargrove's  Col- 
lection of  Tracts.  He  was  moreover  excellently  skilled  in  fhe  civil  and 
canon  laws,  ami  well  acquainted  with  most  of  the  liberal  sciences.  Alter 
spending  a  long  life  of  much  piety,  usefulness,  and  integrity,  he  died  at  the 
age  of  eighty,  and  was  buried  in  the  parish  church  of  St.  Alpliage.  Loudon, 
near  Cripflegate. 

t  See  Mr.  Reeve's  History  of  the  English  law.  4th  vol.,  p  416;  Sii 
William  Jones's  essay  on  the  Law  of  Bailments,  and  Blackst one's  Com- 
ment iries,  in  which  the  Doctor  and  Student  is  quoted  or  mentioned  with 
peculiar  marks  of  respect. 

I  Vide  the  introduction  to  a  work  of  the  late   Mr.  Jacol>,  in  titled  the 

Student's  Companion,  p.  4. 

(iii) 


^ 

5 


'21742 


IV  PREFACE. 


Doctor  and  Student,  and  yet  no  one  who  is  disposed  to  make  a 
steady  progress  in  his  profession  will  object  with  any  degree  of 
seriousness  to  the  quaintness  of  expression  which  he  will  find  in 
those  valuable  repositories  of  ancient  learning.  On  the  contrary, 
he  will  perceive  it  to  be  his  business  to  attend  more  to  things  than 
words,  and  that  he  is  not  to  quarrel  with  his  author,  because  his 
grammar  may  be  false,  or  his  diction  unpolished. 

For  these  reasons,  and  others  that  might  be  named,  the  Editor 
did  not  judge  it  prudent  in  him  to  alter  the  language,  as  some 
might  expect,  but  has  left  it  just  in  the  same  state  in  which  it  ap- 
peared in  the  last  edition.  He  thinks  nothing  could  have  justi- 
fied such  an  alteration.  Were  not  the  editors  of  Swinburne  on 
Wills  and  Testaments  justly  censured  for  presuming  to  correct  the 
style  of  that  learned  performance  ?* 

All  that  has  been  done  therefore  in  the  present  edition  of  the 
Doctor  and  Student  is  merely  an  addition  of  some  notes  and 
references  which  have  been  inserted  with  a  view  to  illustrate  the 
subject  matter,  and  to  shew  how  the  law  has  been  altered  by  acts 
of  parliament  and  judicial  decisions.  In  the  execution  of  his 
plan  it  will  be  seen  that  the  Editor  has  had  much  labour,  and 
taken  considerable  pains.  But  these  are  circumstances  which  will 
be  considered  of  no  great  moment  with  him,  if  his  endeavours 
may  in  any  measure  contribute  to  ease  the  difficulties,  to  lessen 
the  embarrassments,  and  to  improve  the  mind  of  a  young  beginnei 
in  the  study  of  our  English  jurisprudence. 


*  See  4  Burn's  Eccl.  Law,  371,  372. 


THE 


TABLE 


FIRST   DIALOGUE. 


The  Introduction I 

Chap.  i.  Of  the  law  eternal 2 

II.  Of  the  law  of  reason,  the  which  by  doctors  is  called  the  law  of  na- 

ture of  reasonable  creatures 5 

III.  Of  the  law  of  God 7 

IV.  Of  the  law  of  man 9 

V.  Of  the  first  ground  of  the  law  of  England 12 

VI.  Of  the  second  ground  of  the  law  of  England 15 

VII.  Of  the  third  ground  of  the  law  of  England 17 

VIII.  Of  the  fourth  ground  of  the  law  of  England 25 

IX.  Divers  cases  wherein  the  student  doubteth  whether  they  be  only 
maxims  of  the  law,  or  that  they  be  grounded  upon  the  law  of 
reason 31 

X.  Of  the  fifth  ground  of  the  law  of  England 34 

XI.  Of  the  sixtji  ground  of  the  law  of  England 35 

XII.  The  first  question  of  the  doctor,  of  the  law  of  England  and  con- 
science   37 

XIII.  What  sinderesis  is 3y 

XIV.  Of  reason 40 

XV.  Of  conscience 41 

XVI.  What  is  equity 44 

XVII.  In  what  manner  a  man  shall  be  holpen  by  equity  in   the   laws 

of  England 47 

XVIII.  Whether  the  statute  hereafter  rehearsed  by  the  doctor  be 
against    conscience,   or  not 50 

XIX.  Of  what  law  this  question  is  to  be  understood ;  that  is  to  say, 
where  conscience  shall  be  ruled  after  the  law 52 

XX.  Divers  cases  where  conscience  is  to  be  ordered  alter  the  law....  56 

XXI.  The  first  question  of  the  student.  If  any  infant  that  is  of  the 
age  of  twenty  years,  and  hath  reason  and  wisdom  to  govern  him- 
self, selleth  his  land,  and  with  the  inonev  thereof  buyeth  other 

"  (vii) 


Vlll  THE     TABLE. 


land  of  greater  value  than  the  first  was,  and  taketh  the  profits 
thereof;  whether  may  the  infant  ask  his  first  land  again  in  con- 
science, as  he  may  by  the  law? 60 

XXII.  The  second  question  of  the  student.  If  a  man  that  hath  lands 
for  term  of  life  be  impanelled  upon  an  inquest,  and  thereupon 
leeseth  issues,  and  dieth ;  whether  may  those  issues  be  levied 
upon  him  in  the  reversion  in  conscience,  as  they  may  be  by  the 
law? 62 

XXIII.  The  third  question  of  the  student.  If  a  tenant  for  term  of 
life,  or  years,  do  waste,  whereby  they  be  bound  by  the  laws  to 
yield  to  him  in  the  reversion  treble  damages,  and  so  shall  forfeit 
the  place  wasted;  whether  he  is  also  bound  in  conscience  to  pay 
those  damages,  and  to  restore  that  place  wasted  immediately  after 
the  waste  done,  as  he  is  in  the  single  damages,  or  that  he  is  not 
bound  thereto  till  the  treble  damages  and  place  wasted  be  recov- 
ered in  the  king's  court 64 

XXIV.  The  fourth  question  of  the  student.  If  a  man  enfeoff  other 
in  certain  land  upon  condition  that  if  he  enfeoff  any  other,  that 
it  may  be  lawful  for  the  feoffor  and  his  heirs  to  re-enter,  etc., 
whether  is  this  condition  good  in  conscience,  though  it  be  void  in 

the  law  ? 64 

XXV.  The  fifth  question  of  the  student.  If  a  fine  with  proclamation 
be  levied  according  to  the  statute,  and  no  claim  made  within  five 
years,  etc.,  whether  is  the  right  of  a  stranger  extincted  thereby  in 
conscience,  as  it  is  in  the  law? 66 

XXVI.  A  question  made  by  the  doctor,  how  certain  recoveries  that  be 
used  in  the  king's  courts  to  defeat  tailed  land  may  stand  with 
conscience 6S 

XXVII.  The  first  question  of  the  student  concerning  tailed  lands 81 

XXVIII.  The  second  question  of  the  student  concerning  tailed  lands..     Si 

XXIX.  The  third  question  of  the  student  concerning  tailed  lands....     S4 

XXX.  The  fourth  question  of  the  student  concerning  recoveries  of  in- 
heritances intailed S7 

XXXI.  The  fifth  question  of  the  student  concerning  tailed  lands 88 

XXXII.  The  sixth  question  of  the  student  concerning  tailed  lands 91 


THE 


TA  B  L  E 


SECOND  DIALOGUE. 


The  Prologue 9', 

The  Introduction 98 

Chap.  1.  The  first  question  of  the  student.    Whether  the  tenant  in  tail 

after  possibility  of  issue  extinct  may  with  conscience  do  waste- ..    101 

II.  What  is  meant  by  this  term,  when  it  is  said,  Thus  it  ivas  at  the 
common  law 105 

III.  The  second  question  of  the  student.  Whether  the  goods  of  men 
outlawed  be  forfeit  in  conscience,  as  they  be  by  the  law 107 

IV.  The  third  question  of  the  student,  of  waste  done  by  a  stranger  in 
the  lands  that  be  in  the  hands  of  particular  tenants,  etc in 

V.  The  fourth  question  of  the  student      Whether   a    man    may  with 

conscience  be  of  counsel  against  him  that  he  knoweth  is  the  heir 

of  right,  but  he  is  certified  bastard  by  the  ordinary 115 

VI.  The  fifth  question  of  the  student.  Whether  a  man  may  with  con- 
science be  of  counsel  with  a  man  at  the  common  law,  knowing  that 
the  defendant  hath  sufficient  matter  to  be  discharged  in  the 
chancery,  that  he  may  not  plead  at  the  common  law 118 

VII.  The  sixth  question  of  the  student.  Whether  a  man  may  with 
conscience  be  of  counsel  against  the  feoffee  of  trust  in  an  action 
of  trespass  that  he  bringeth  against  his  feolYor  of  trust  for  taking 
the  profits .. 120 

VIII.  The  seventh  question  of  the  student.  If  a  man  by  way  of  dis- 
tress cometh  to  his  debt,  but  he  ought  not  to  have  distrained  for  it, 
what  restitution  is  he  bound  to  make 122 

IX.  For  what  thing  a  man  may  lawfully  distrain 125 

\.  The  eighth  question  of  the  student.    Whether  executors  be  bound 

in  conscience  to  make  restitution  for  a  trespass  done  by  a  testator; 
and  whether  they  be  bound  to  pay  debts  upon  a  contract  first,  or 

make  i\^  said  restitution 128 

XI.  The  ninth  question  of  the  student.  Whether  he  that  hath  goods 
delivered  him  by  force  of  a  legacy  is  bound  in  conscience  to  pay 


THE    TABLE. 


the  debt  upon  a  contract  that  the  testator  ought,  if  the  executors 
have  no  other  goods  in  their  hands 133 

XII.  The  tenth  question  of  the  student.  If  a  man  have  issue  two  sons, 
and  die  seised  of  certain  lands  in  fee,  the  eldest  dieth  without 
issue,  the  youngest  recovereth  by  assise  of  Mort  cV 'ancestor  the  land, 
with  damages  from  the  death  of  the  father,  whether  there  he  be 
bound  in  conscience  to  pay  the  profits  to  the  executors  of  the 
eldest  brother  for  the  time  he  lived 136 

XIII.  The  eleventh  question  of  the  student.  What  damages  the  tenant 
in  dower  shall  recover  in  conscience  where  her  husband  died  not 
seised,  but  she  demanded  her  dower,  and  was  denied 138 

XIV.  The  twelfth  question  of  the  student.  If  a  man  knowing  another 
to  have  right  to  his  land,  causeth  a  fine  with  proclamation  to  be 
levied,  according  to  the  statute,  and  he  that  hath  right  maketh  no 
claim  within  five  years,  whether  he  be  barred  in  conscience,  as  he 

is  in  the  law »•« 142 

XV.  The  thirteenth  question  of  the  student.  If  a  man  that  hath  a 
child  by  his  wife,  do  that  in  him  is,  to  have  had  possession  of  his 
wife's  land,  and  she  dieth  before  he  can  have  it,  whether  in  con- 
science he  shall  be  tenant  by  the  courtesy 143 

XVI.  The  fourteenth  question  of  the  student.  If  the  grantor  of  a  rent 
enfeoffeth  the  grantee  of  the  rent  of  part  of  the  lands,  etc., 
whether  the  whole  rent  be  extinct  in  conscience,  as  it  is  in  the 
law 146 

XVII.  The  fifteenth  question  of  the  student.  If  he  that  hath  a  rent  out 
of  two  acres  be  named  in  a  recovery  of  the  one  acre,  he  not 
knowing  thereof,  etc.,  whether  his  whole  rent  be  extinct  in  con- 
science, etc 151 

XVIII.  The  sixteenth  question  of  the  student.  If  a  man  have  a  villein 
for  term  of  life,  and  the  villein  purchaseth  lands  in  fee,  and  he 
that  hath  the  villein  entereth,  whether  he  may  witli  conscience 
keep  the  lands  to  him  and  to  his  heirs,  as  he  may  by  the  law 153 

XIX.  The  seventeenth  question  of  the  student.  If  a  man  in  the  case 
next  before  inform  him  that  is  in  the  reversion  of  the  villein,  that 
after  the  death  of  the  villein  he  hath  right  to  land,  and  counselleth 
him  to  enter,  whereupon  great  suit  and  charges  follow,  what 
danger  is  this  to  him  that  gave  the  counsel 156 

XX.  The  eighteenth  question  of  the  student,  upon  a  feoffment  made 
upon  condition,  that  the  feoffee  shall  pay  a  rent  to  a  stranger, 
how  the  feoffment  shall  weigh  in  law  and  conscience 159 

XXI.  The  nineteenth  question  of  the  student,  upon  a  feoffment  in  fee, 
and  it  is  agreed  that  the  feoffee  shall  pay  a  rent  to  a  stranger,  how 
feoffment  shall  weigh  in  law  and  conscience i62 

XXII.  I  low  uses  "I'  land  first  began,  and  by  what  law,  and  the  cause 
why  so  much  land  is  put  in  use 165 

XXIII.  The  diversity  between  two  cases,  whereof  one  is  put  in  the 
twentieth  chapter,  and  the  other  in  the  twenty-first  chapter  of  this 
present  book 17a 


THE    TABLE.  xj 


XXIV.  What  i-  a  nude  contract,  or  naked  promise,  after  the  laws  of 
England,  and  whether  any  action  may  lie  thereon 176 

XXV.  The  twentieth  question  of  the  student.  If  a  man  that  hath  two 
sons,  one  before  espousals,  and  the  other  after  e6pou6als,  by  his 
will  bequeatheth  to  his  son  and  heir  all  his  goods,  which  of  the 
sons  shall  have  his  goods  in  conscience ^i 

X\\  I  \\  h  li  ran  abbot  may  with  conscience  present  to  an  advow- 
son  of  a  church  that  belongeth  to  the  house,  without  assent  of  the 
covent • jg_ 

XXVI]  If  a  man  find  beasts  in  his  ground  doing  hurt,  whether  he 
may  by  his  own  authority  take  them,  and  keep  them,  till  he  be 
satisfied  of  the  hurt If)I 

XXVIII.  Whether  a  gift  made  by  one  under  the  age  of  twenty-five 
years  be  good I(^ 

XXIX.  If  a  man  be  convict  of  heresy  before  the  ordinary,  whether  his 
goods  be  forfeited IQ- 

XXX.  Where  divers  patrons  of  an  advowson,  and  the  church  voideth, 
the  patrons  vary  in  their  presentments,  whether  the  bishop  shall 
have  liberty  to  present  which  of  the  incumbents  that  he  will  or 
not 196 

XXXI.  How  long  time  the  patron  shall  have  to  present  to  a  benefice.    199 

XXXII.  If  a  man  be  excommenged,  whether  he  may  in  any  case  be 
assoiled  without  making  satisfaction 202 

XXXIII.  Whether  a  prelate  may  refuse  a  legacy 203 

XXXIV.  Whether  a  gift  made  under  a  condition  be  void,  if  the  sover- 
eign only  break  the  condition 207 

XXXV.  Whether  a  covenant  made  upon  a  gift  to  the  church,  that  it 
shall  not  be  aliened,  be  good    ^oq 

XXXVI.  If  the  patron  present  not  within  six  months,  who  shall 
present ,„ 

XXXVII.  Whether  the  presentment  and  collation  of  all  benefices  and 
dignities,  voiding  at  Rome,  belongeth  only  to  the  pope 217 

XXXVIII.  If  a  house  by  chance  fall  upon  a  horse  that  is  borrowed. 
who  shall  bear  the  loss „Iq 

XXXIX.  If  a  priest  have  won  much  goods  by  saying  of  mass,  whether 

be  may  give  those  goods,  or  make  a  will  of  them 221 

XL.    Who  shall  succeed  a  clerk  that  dieth  intestate 224 

XLI.    If  a  man   be  outlawed  of  felony,  or  be   attainted  of  murder  or 

felony,  or  that  i<  an  A.scismus,  maybe  slain  by  every  stranger 226 

XLII.   Whether  a  man  shall   be  bounden  by  the   act  or  offence  of  his 


servant  or  officer 


:S 


XLIII.   Whether  a  villein  or  a  bondman  may  give  away  his  goods 236 

XLIV.    If  a  clerk  be  promoted  to  the  title  of  his  patrimony,  and  after 
selleth  his  patrimony,  ami  after  falleth  to  poverty,  whether  shall 

he  have  his  title  therein 240 

XLV.  Divers  questions  taken  by  the  student  out  of  the  sums  called 
Summa  Rosella  and    Summa   Angelica,  which    he    thinketh    are 


Xll  THE    TABLE. 


necessary  to  be  seen  how  they  stand  and  agree  with  the  laws  of 


the  realm , 


>43 


XL VI.  Where  ignorance  of  the  law  excuseth  in  the  laws  of  England, 

and  where  not 248 

XLVII.  Certain  cases  and  grounds  where  ignorance  of  the  deed  ex- 
cuseth in  the  laws  of  England,  and  where  not 253 

XL  VIII.  The  first  question  of  the  doctor,  how  the  lawof  England  may 
be  said  reasonable,  that  prohibiteth  them  that  be  arraigned  upon 
an  indictment  of  felony  or  murder,  to  have  counsel 256 

XLIX.  The  second  question  of  the  doctor,  whether  the  warranty  of 
the  younger  brother  that  is  taken  as  heir,  because  it  is  not  known 
but  that  the  eldest  brother  is  dead,  be  in  conscience  a  bar  unto  the 
eldest  brother  as  it  is  in  the  law 259 

L.  The  third  question  of  the  doctor,  whether  if  a  man  prosecute  a 
collateral  warranty,  to  extinct  a  right  that  he  knoweth  another  man 
hnth  to  land,  it  be  a  bar  in  conscience,  as  it  is  in  law 262 

LI.  The  fourth  question  of  the  doctor,  of  the  wreck  of  the  sea 265 

LII.  The  fifth  question  of  the  doctor,  whether  it  stand  with  conscience 
to  prohibit  a  jury  of  meat  and  drink  till  they  be  agreed  of  their 
verdict 268 

LIII.  The  sixth  question  of  the  doctor,  whether  the  colours  that  be 
given  at  the  common  law  in  assises,  actions  of  trespass,  etc.,  stand 
with  conscience,  because  they  be  most  commonly  feigned 269 

LIV.  The  seventh  question  of  the  doctor,  concerning  the  pleadings  in 
assise,  whereby  the  tenants  use  sometime  to  plead  in  such  manner 
that  they  shall  confess  no  ouster 274 

LV.  The  eighth  question  of  the  doctor,  whether  the  statute  of  forty- 
five  Edward  the  Third,  of  Sylva  ccedua,  stand  with  conscience. ...  278 


TABLE 


ADDITIONS. 


Chap.  I.  What  power  the  parliament  hath  over  such  things  as  be 
brought  with  dead  bodies  to  their  burials,  and  that  be  claimed  by 
some  curates  to  pertain  to  their  church •  3°3 

II.  Whether  the  parliament  may  enact,  that  no  lands  shall  come  here- 

after into  mortmain  by  licence  nor  without  licence 308 

III.  Whether  the  parliament  may  break  all  appropriations  that  be 
made  against  any  statute,  or  against  the  good  order  of  the  people  309 

IV.  That  all  sanctuaries,  and  also  who  shall  have  his  clergy,  be  under 
the  power  of  the  parliament,  to  order  as  they  shall  think  con- 
venient  311 

V.  What  power  the  parliament  hath  in  the  trees  and  grass  in  church- 

yards   312 

VI.  What  the  parliament  may  do  touching  suits  for  dilapidations 
taken  in  the  spiritual  court 314 

VII.  Whether  the  parliament  may  enact  that  no  priest  shall  wear  any 
cloth  made  out  of  the  realm,  and  whether  it  may  order  the  salary 

of  chaplains 316 

VIII.  If  there  were  a  schism  in  the  papacy,  what  the  parliament  might 

do  therein 319 

IX.  If  it  were  enacted,  that  if  one  call  another  thief  or  murderer,  that 
the  suit  should  be  taken  thereupon  in  the  king's  court,  and  not  in 
the  spiritual  court,  I  think  the  statute  were  «,'ood 324 

X.  Whether  the  parliament  may  enact,  that  no  religious  person,  under 

a  certain  pain,  shall  receive  into  the  habit  of  their  religion   any 

child  under  a  certain  age  to  be  appointed  by  the  parliament 325 

XI-  Whether  the  parliament  may  prohibit,  that  no  ordinary,  under  a 
certain  pain,  shall  admit  none  to  the  order  of  priesthood,  except 
they  be  sufficiently  learned 32S 

XII.  Who  shall  have  the  tithes  of  the  waste  grounds  that  be  within  no 
parish,  and  what  power  the  parliament  hath  therein 331 

XIII.  What  authority  the  parliament  hath  concerning  visitations 336 

Cxiii) 


DOCTOR   AND   STUDENT. 


INTRODUCTION. 


A  doctor  of  divinity,  that  was  of  great  acquaintance  and 
familiarity  with  a  student  in  the  laws  of  England,  said  thus 
unto  him  :  I  have  had  a  great  desire  of  long  time  to  know 
whereupon  the  law  of  England  is  grounded  ;  but  because 
the  most  part  of  the  law  of  England  is  written  in  the  French 
tongue,  therefore  I  cannot,  through  mine  own  study,  attain 
to  the  knowledge  thereof;  for  in  that  tongue  I  am  nothing 
expert.  And  because  I  have  found  thee  a  faithful  friend 
to  me  in  all  my  business,  therefore  I  am  bold  to  come  to 
thee  before  any  other,  to  know  thy  mind,  what  be  the  very 
grounds  of  the  law  of  England,  as  thou  thinkest. 

Sited.  That  would  ask  a  great  leisure,  and  it  is  also  above 
my  cunning  to  do  it :  nevertheless,  that  thou  shalt  not  think 
that  I  would  wilfully  refuse  to  fulfil  thy  desire,  I  shall  with 
good  will  do  that  m  me  is  to  satisfy  thy  mind.  But  I  pray 
thee  that  thou  wilt  first  shew  me  somewhat  of  other  laws 
that  pertain  most  to  this  matter,  and  that  doctors  treat  o\\ 
how  laws  have  been  begun  ;  and  then  I  will  gladly  shew 
thee,  as  methinketh,  what  be  the  grounds  of  the  law  of 
England. 

Doc/.  I  will  wit!;  good  will  do  as  thou  savest.  Where- 
fore thou  Shalt  understand  that  doctors   treat  of  four  laws. 


Introduction. 


the  which  (as  me  seemeth)  pertain  most  to  this  matter.  The 
first  is  the  lazv  eternal.  The  second  is  the  lazv  of  nature 
of  reasonable  creatures,  the  which,  as  I  have  heard  say,  is 
called  by  them  that  be  learned  in  the  law  of  England,  the 
lazv  of  reason.  The  third  is  the  law  of  God.  The  fourth 
is  the  lazv  of  man.  And  therefore  I  will  first  treat  of  the 
lazv  eternal. 


DIALOGUE    I. 


Chapter  I. — Of  the  law  eternal. 

Like  as  there  is  in  every  artificer  a  reason  of  such  like 
things  as  are  to  be  made  by  his  craft :  so  likewise  it  be- 
hoveth  that  in  every  governor  there  be  reason  and  a  tore- 
sight  in  the  governing  of  such  things  as  shall  be  ordered 
and  done  by  him  to  them  that  he  hath  the  governance  of. 
And  forasmuch  as  Almighty  God  is  the  creator  and  maker 
of  all  creatures,  to  which  he  is  compared  as  a  workman  to 
his  works,  and  is  also  the  governor  of  all  deeds  and  mov- 
ings  that  be  found  in  any  creature  :  therefore  as  the  reason 
of  the  wisdom  of  God  (inasmuch  as  creatures  be  created 
by  him)  is  the  reason  and  foresight  of  all  crafts  and  works 
that  have  been  or  shall  be  ;  so  the  reason  of  the  wisdom  of 
God,  moving  all  things  by  wisdom  made  to  a  good  end, 
obtaineth  the  name  and  reason  of  a  law,  and  that  is  called 
the  law  eternal. 

And  this  law  eternal  is  called  the  first  law  :  and  it  is  well 
called  the  first,  for  it  was  before  all  other  laws,  and  all  other 
laws  be  derived  of  it.  Whereupon  St.  Augustine  saith,  in 
his  first  book  of  free  arbitrement,  that  in  temporal  laws 
nothing  is  righteous  tie  lazef/il .  but  that  the  feople  have 
derived  to  the///  out  ol  the  laze  eU  rt/al.  Wherefore  every 
man  hath  right  and  title  to  have  ihat  he  hath  righteously, 
ami  of  right  wise  judgment  of  the  first  reason,  which  is  the 
law  eternal. 

Stud.  But  how  may  this  law  eternal  be  known?  For,  as 
the  apostle  writeth  in  tin-  second  chapter    if  his  first  epistle 


Doctor  and  Student. 


to  the  Corinthians,  quce  stent  Dei  nemo  scit,  nisi  Spirilus 
Dei ;  that  is  to  say,  no  man  knoweth  what  is  in  God  but  the 
Spirit  of  God  :  wherefore  it  seemeth  that  he  openeth  his 
mouth  against  heaven,  that  attempteth  to  know  it. 

Doct.  This  law  eternal  no  man  may  know,  as  it  is  in  it- 
self, but  only  blessed  souls  that  see  God  face  to  face.  But 
Almighty  God  of  his  goodness  sheweth  of  it  as  much  to  his 
creatures  as  is  necessary  for  them,  ior  else  God  should  bind 
his  creatures  to  a  thing  impossible  ;  which  may  in  no  wise 
be  thought  in  him.  Therefore  it  is  to  be  understood  that 
three  manner  of  ways  Almighty  God  maketh  this  law  eter- 
nal known  to  his  creatures  reasonable.  First,  by  the  light 
of  natural  reason ;  secondly,  by  heavenly  revelation  ; 
thirdly,  by  the  order  of  a  prince,  or  any  other  secondary 
governor  that  hath  power  to  bind  his  subjects  to  a  law. 

And  when  the  law  eternal  or  the  will  of  God  is  known 
to  his  creatures  reasonable  by  the  light  of  natural  under- 
standing, or  by  the  light  of  natural  reason,  that  is  called 
the  law  of  reason :  and  when  it  is  shewed  by  heavenly 
revelation  in  such  manner  as  hereafter  shall  appear,  then 
it  is  called  the  lazv  of  God:  and  when  it  is  shewed  unto 
him  by  the  order  of  a  prince,  or  of  an}'  other  secondary 
governor  that  hath  a  power  to  set  a  law  upon  his  subjects, 
then  it  is  called  the  lazv  of  man,  though  originally  it  be 
made  of  God.  For  laws  made  by  man  that  hath  received 
thereto  power  of  God,  be  made  by  God.  Therefore  the 
said  three  laws,  that  is  to  say  the  law  of  reason,  the  law  of 
God,  and  the  law  of  man,  the  which  hath  several  names 
after  the  manner  as  they  be  shewed  to  man,  be  called  in 
God  one  law  eternal. 

And  this  is  the  law  of  which  it  is  written  proverbiorum 
octavo,  where  it  is  said,  per  me  reges  regnant  and  legum 
conditores  justa  diseernant ;  that  is  to  say,  by  me  kings 
reign,  and  makers  of  law  discern  the  truth.  And  this  suf- 
ficed! for  this  time  for  the  law  eternal. 


Dialogue   I. — Chap.  2. 


Chap.   II. —  Of  the  law  of  reason,  the  which  by  doctors  is 
called  the  law  of  nature  of  reasonable  creatures. 

First  it  is  to  be;  understood,  that  the  law  of  nature  may 
be  considered  in  two  manners,  that  is  to  say,  general lv  and 
specially.  When  it  is  considered  generally,  then  it  is 
referred  to  all  creatures,  as  well  reasonable  as  unreasonable  : 
tor  all  unreasonable  creatures  live  under  a  certain  rule  to 
them  given  by  nature,  necessary  to  them  for  the  conserva- 
tion of  their  being.  But  of  this  law  it  is  not  our  intent  to 
treat  at  this  time.  The  law  of  nature  specially  considered, 
which  is  also  called  the  law  of  reason,  pertaineth  only  to 
creatures  reasonable,  that  is,  man,  which  is  created  to  the 
image  of  God. 

And  this  law  ought  to  be  kept  as  well  among  Jews  and 
Gentiles,  as  among  christian  men  :  and  this  law  is  alway 
good  and  righteous,  stirring  and  inclining  a  man  to  good, 
and  abhorring  evil.  And  as  to  the  ordering  of  the  deeds 
of  man,  it  is  preferred  before  the  law  of  God,  and  it  is 
written  in  the  heart  of  every  man,  teaching  him  what  is  to 
be  done,  and  what  is  to  be  fled  ;  and  because  it  is  written  in 
the  heart,  therefore  it  may  not  be  put  away,  ne  it  is  never 
changeable  by  no  diversit}-  of  place,  ne  time  :  and  there- 
fore against  this  law,  prescription,  statute  nor  custom  may 
not  prevail :  and  it  any  be  brought  in  against  it.  they  be 
not  prescriptions,  statutes  nor  customs,  but  things  void  and 
against  justice.*  And  all  other  laws,  as  well  the  laws  of 
God  as  to  the  acts  of  men,  as  other,  be  grounded  there- 
upon. 

Stud.  Sith  the  law  of  reason  is  written  in  the  heart  of 
every  man,  as  thou  hast  said  before,  teaching  him  what  is 
to  be  done,  and  what  is  to  be  fled,  and  the  which  thou  sayest 
may  never  be  put  out  of  the  heart,  what  needeth  it  then  to 
have  any  other  law  brought  in  to  order  the  acts  and  deeds 
of  the  people?  f 

*  Hob-  14S;   Consideration  on  the  law  of  forfeitures,  20,  21. 
f  7  Rep.  12. 


Doctor  and   Student. 


Doct.  Though  the  law  of  reason  may  not  be  changed, 
nor  wholly  put  away  ;  nevertheless,  before  the  law  written, 
it  was  greatly  lett  and  blinded  by  evil  customs,  and  by  many 
sins  of  the  people,  beside  our  original  sin  ;  insomuch  that 
it  might  hardly  be  discerned  what  was  righteous,  and  what 
was  unrighteous,  and  what  was  good,  and  what  evil. 
Wherefore  it  was  necessary,  for  the  good  order  of  the  peo- 
ple, to  have  many  things  added  to  the  law  of  reason,  as 
well  by  the  church  as  by  secular  princes,  according  to  the 
manners  of  the  country  and  of  the  people  where  such  ad- 
ditions should  be  exercised.  And  this  law  of  reason  dif- 
fereth  from  the  law  of  God  in  two  manners.  For  the  law 
of  God  is  given  by  the  revelation  of  God  ;  and  this  law  is 
given  by  a  natural  light  of -understanding.  And  also  the 
law  of  God  ordereth  a  man  of  itself,  by  a  nigh  way,  to  the 
felicity  that  ever  shall  endure  ;  and  the  law  of  reason  or- 
dereth  a  man  to  the  felicity  of  this  life. 

Stud.  But  what  be  the  things  that  the  law  of  reason 
teaches  to  be  done,  and  what  to  be  fled?  I  pray  thee 
shew  me. 

Doct.  The  law  of  reason  teacheth,  that  good  is  to  be 
loved,  and  evil  is  to  be  fled  :  also  that  thou  shalt  do  to  an- 
other, that  thou  wouldest  another  should  do  unto  thee  ;  and 
that  we  may  do  nothing  against  truth  ;  and  that  a  man  must 
live  peacefully  with  others  ;  that  justice  is  to  be  done  to 
every  man  ;  and  also  that  wrong  is  not  to  be  done  to  any 
man  ;  and  that  also  a  trespasser  is  worthy  to  be  punished  ; 
and  such  other.  Of  the  which  follow  divers  other  second- 
ary commandments,  the  which  be  as  necessary  conclusions 
derived  of  the  first.  As  of  that  commandment,  that  good 
is  to  be  beloved  ;  it  followeth,  that  a  man  should  love  his 
benefactor  :  for  a  benefactor,  in  that  he  is  a  benefactor,  in- 
cludeth  in  him  a  reason  of  goodness,  for  else  he  ought  not 
to  be  called  a  benefactor:  that  is  to  say,  a  good  doer,  but 
an  evil  doer  :  and  so  in  that  he  is  a  benefactor,  he  is  to  be 
beloved  in  all  times  and  in  all  places.*      And   this  law  also 


Cic.  i,  2,  de  legibus. 


Dialogue   I. — Chap.  3. 


suffereth  many  things  to  be  done  :  as  that  it  is  lawful  to  put 
away  force  with  force  ;  and  that  it  is  lawful  for  every  man 
to  defend  himself  and  his  goods  against  an  unlawful  power. 
And  this  law  runneth  with  every  man's  law,  and  also  with 
the  law  of  Gzd,  as  to  the  deeds  of  man,  and  must  be  al- 
wavs  kept  and  observed,  and  shall  always  declare  what 
ought  to  follow  upon  the  general  rules  of  the  law  ot  man, 
and  shall  restrain  them  if  they  be  any  thing  contrary  unto  it. 
And  here  it  is  to  be  understood,  that  after  some  men, 
the  law  whereby  all  things  were  in  common,  was  never  of 
the  law  of  reason,  but  only  in  the  time  of  extreme  neces- 
sitv.  For  they  say,  that  the  law  of  reason  may  not  be 
changed  ;  but  they  say,  it  is  evident,  that  the  law  whereby 
all  things  should  be  in  common,  is  changed  :  wherefore 
they  conclude,  that  was  never  the  law  of  reason. 

Chap.   III. — Of  the  law  of  God. 

The  law  of  God  is  a  certain  law  given  by  revelation  to  a 
reasonable  creature,  shewing  him  the  will  of  God,  willing 
that  creatures  reasonable  be  bound  to  do  a  thing,  or  not  to 
do  it,  tor  obtaining  of  the  felicity  eternal.  And  it  is  said, 
for  the  obtaining  of  the  felicity  eternal,  to  exclude  the 
laws  shewed  by  revelation  of  God  for  the  political  rule  of 
the  people,  and  which  be  called  judiciah.  For  a  law  is  not 
properlv  called  the  law  of  God,  because  it  was  shewed  by 
revelation  of  God,  but  also  because  it  directed  a  man  by  the 
nearest  way  to  the  felicity  eternal  ;  as  been  the  laws  of  the 
Old  Testament,  that  been  called  morals,  and  the  laws  of  the 
evangelists,  the  which  were  shewed  in  much  more  excellent 
manner  than  the  law  of  the  Old  Testament  was  :  for  that 
was  shewed  bv  the  mediation  of  an  angel  ;  but  the  law  ot 
the  evangelists  was  shewed  by  the  mediation  of  our  Lord 
Jesus  Christ.  God  and  man.  And  the  law  oi  God  is  always 
righteous  and  just,  for  it  is  made  and  given  alter  the  will 
of  God.  And  therefore  all  acts  and  deeds  of  man  be  called 
righteous  and  just,  when  they  be  done  according  to  the  law 
of  God,  and  be  conformable  to  it.     Also  sometime    a  law 


8  Doctor  and   Student. 

made  by  man,  is  called  the  law  of  God.  As  when  a  law 
taketh  his  principal  ground  upon  the  law  of  God,  and  is 
made  for  the  declaration  or  conservation  of  the  faith,  and 
to  put  away  heresies,  as  divers  laws  canon,  and  also  divers 
laws  made  by  the  common  people,  sometime  do  ;  the  which 
therefore  are  rather  to  be  called  the  law  of  God,  than  the 
law  of  man.  Yet  nevertheless  all  the  laws  canon  be  not 
the  laws  of  God  :  for  many  of  them  be  made  only  tor  the 
political  rule  and  conservation  of  the  people.*  Whereupon 
John  Gerson,  in  the  treatise  of  the  spiritual  life  of  the 
soul,  the  second  lesson,  and  the  third  corollary,  saith  thus  : 
All  the  canons  of  bishops  nor  their  decrees  be  not  the  law 
of  God  :  for  many  of  them  be  made  only  for  the  political 
conservation  of  the  people.  And  if  any  man  will  say, 
Be  not  all  the  goods  of  the  church  spiritual,  for  they 
belong  unto  the  spiritualty,  and  leading  to  the  spirit- 
ualty? We  answer,  that  in  the  whole  political  conser- 
vation of  the  people,  there  be  some  specially  deputed 
and  dedicated  to  the  service  of  God,  the  which  most  spe- 
cially (as  by  an  excellency)  are  called  spiritual  men,  as  re- 
ligious men  are.  And  other,  though  they  walk  in  the  way 
of  God,  yet  nevertheless,  because  their  office  is  most  spe- 
cially to  be  occupied  about  such  things  as  pertain  to  the  com- 
monwealth, and  to  the  good  order  of  the  people,  they  be 
therefore  called  secular  men  or  lay  men.  Nevertheless, 
the  goods  of  the  first  may  no  more  be  called  spiritual  than 
the  goods  of  the  other,  for  they  be  things  more  temporal, 
and  keeping  the  body,  as  they  do  in  the  other.  And  by 
like  reason,  laws  made  for  the  political  order  of  the  church 
be  called  many  times  spiritual,  or  the  laws  of  God  ;  never- 
theless it  is  but  improperly  :  and  other  be  called  civil,  or 
the  laws  of  man.  And  in  this  point  many  be  oft  times  de- 
ceived, and  also  deceive  other,  the  which  judge  the  things 
to  be  spiritual,  the  which  all  men  know  be  things  temporal 
and  carnal.  These  be  the  words  of  John  Gerson,  in  the 
place  alleged  before.     Farthermore,  beside  the  law  of  rea- 

*  Preface  to  Burn's  Ecc.  Law,  i  B.  C  82. 


Dialogue   I. — Chap.  4. 


son  and  the  law  of  man,  it  was  necessary  to  have  the  law 
of  God,  for  four  reasons. 

The  first,  Because  man  is  ordained  to  the  end  of  the 
eternal  felicity,  the  which  exceedeth  the  proportion  and  fac- 
ulty of  man's  power.  Therefore  it  was  necessary  that,  be- 
side the  law  of  reason  and  the  law  of  man,  he  should  be 
directed  to  his  end  by  the  law  of  God. 

Secondly,  Forasmuch  as  for  the  uncertainty  of  man's 
judgment,  specially  of  things  peculiar  and  seldom  falling, 
it  happeneth  oft  times  to  follow  divers  judgments  of  divers 
men,  and  diversities  of  laws  ;  therefore,  to  the  intent  that  a 
man  without  any  doubt  may  know  what  he  should  do,  and 
what  he  should  not  do,  it  was  necessary  that  he  should  be 
directed  in  all  his  deeds  by  a  law  heavenly,  given  by  God, 
the  which  is  so  apparent  that  no  man  may  swerve  from  it, 
as  is  the  law  of  God. 

Thirdly,  Man  may  only  make  a  law  of  such  things  as 
he  ma}-  judge  upon,  and  the  judgment  of  man  may  not  be 
of  inward  things,  but  only  of  outward  things  ;  and  never- 
theless it  belongeth  to  perfection  that  a  man  be  well  ordered 
in  both,  that  is  to  say,  as  well  inward  as  outward.  There- 
fore it  was  necessary  to  have  the  law  of  God,  the  which 
should  order  a  man  as  well  of  inward  things  as  of  outward 
things. 

The  fourth  is,  Because,  as  St.  Augustine  saith  in  his  first 
book  of  free  arbitrement,  the  law  of  man  may  not  punish 
all  offences  :  for,  if  all  offences  should  be  punished,  the 
commonwealth  should  be  hurt,  as  is  of  contracts  ;  for  it 
cannot  be  avoided,  but  that  as  long  as  contracts  be  suffered, 
many  offences  shall  follow  thereby,  and  yet  they  be  suffered 
for  the  commonwealth.  And  therefore  that  no  evil  should 
be  unpunished,  it  was  necessary  to  have  the  law  of  God 
that  should  leave  no  evil  unpunished. 

Chap.   IV.  —  Of  the  law  of  man. 

The  laze  of  man  (the  which  sometime  is  Called  the  law 
positive)  is  derived  by  reason,  as  a  thing  which  is  neces- 


io  Doctor  and  Student. 

sary,  and  probabh*  following  of  the  law  of  reason  and  of 
the  law  of  God.  And  that  is  called  probable,  in  that  it 
appeareth  to  man)',  and  especially  to  wise  men  to  be  true. 
And  therefore  in  every  law  positive  well  made,  is  somew  at 
of  the  law  of  reason,  and  of  the  law  of  God;  and  to  dis- 
cern the  law  of  God  and  the  law  of  reason  from  the  law 
positive  is  very  hard.  And  though  it  be  hard,  j'et  it  is 
much  necessary  in  every  moral  doctrine,  and  in  all  laws 
made  for  the  commonwealth.  And  that  the  law  of  man  be 
just  and  rightwise,  two  things  be  necessary,  and  that  is  to 
say,  wisdom  and  authority.  Wisdom  that  he  may  judge 
after  reason  what  is  to  be  done  for  the  commonalty,  and 
what  is  expedient  for  a  peaceable  conservation  and  neces- 
sary sustentation  of  them  ;  authority,  that  he  have  authority 
to  make  laws.  For  the  law  is  derived  of  Ugare,  that  is  to 
say,  to  bind.  But  the  sentence  of  a  wise  man  doth  not  bind 
the  commonaltv,  if  he  have  no  rule  over  them.  Also  to 
every  good  law  be  required  these  properties  :  that  is  to  say, 
that  it  be  honest,  rightwise,  possible  in  itself,  and  after  the 
Custom  of  the  country,  convenient  for  the  place  and  time, 
necessary,  profitable,  and  also  manifest,  that  it  be  not  cap- 
tious by  any  dark  sentences,  ne  mixt  with  any  private 
wealth,  but  all  made  for  the  commonwealth.  And  after  St. 
Bridget,  in  the  fourth  book,  in  the  hundred  and  twenty- 
ninth  chapter,  every  good  law  is  ordained  to  the  health  of 
the  Soul,  and  to  the  fulfilling  of  the  laws  of  God,  and  to 
induce  the  people  to  fly  evil  desires,  and  to  do  good  works. 
Also  the  cardinal  of  Camerer  writeth,  Whatsoever  is 
righteous  in  the  law  of  man,  is  righteous  in  the  law  of  God. 
For  every  man's  law  must  be  consonant  to  the  law  of  God. 
And  therefore  the  laws  of  princes,  the  commandments  of 
prelates,  the  statutes  of  commonalties,  ne  yet  the  ordinance 
of  the  church,  is  not  righteous  nor  obligatory,  but  it  be 
consonant  to  the  law  of  God.* 

And  of  such  a  law  of  man  that  is  consonant  to  the   law 
of  God,  it  appeareth  who  hath  right  to  lands  and  goods  and 

*  2  Shep.  Abr.  356. 


Dialogue    I. — Chap.    4.  11 


who  not:  for  whatsoever  a  man  hath  by  such  laws  of  man, 
he  hath  righteously  ;  and  whatsoever  he  hath  against  such 
laws,  is  unrighteously  had. 

For  laws  of  man  not  contrary  to  the  law  of  God,  nor  to 
the  law  of  reason,  must  be  observed  in  the  law  of  the  soul  : 
and  he  that  despiseth  them,  despiseth  God.  and  resist 
God.  And  furthermore,  as  Gratian  saith,  because  evil  men 
fear  to  offend,  for  fear  of  pain  ;  therefore  it  was  necessary 
that  divers  pains  should  be  ordained  for  divers  offences,  as 
physicians  ordained  divers  remedies  for  several  diseases. 
And  such  pains  be  ordained  by  the  makers  of  laws,  after 
the  necessity  of  the  time,  and  after  the  disposition  of  the 
people.  And  though  that  law  that  ordained  such  pains 
hath  thereby  a  conformity  to  the  law  of  God,  (for  the  law 
of  God  commandeth  that  the  people  shall  take  away  evil 
from  among  themselves  ;)  yet  they  belong  not  so  much  to 
the  law  of  God,  but  that  other  pains  (standing  the  first 
principles)  might  be  ordained  and  appointed  therefore. 
That  is  the  law  that  is  called  most  properly  the  laze  ^pos- 
itive, and  the  laiv  of  man. 

And  the  philosopher  said  in  the  third  book  of  his  ethicks, 
that  the  intent  of  a  maker  of  a  law  is  to  make  the  -people 
good,  and  to  bring  them  to  virtue.  And  although  I  have 
somewhat  in  general  shewed  thee  whereupon  the  law  of 
England  is  grounded  (for  of  necessity  it  must  be  grounded 
of  the  said  laws,  that  is  to  say,  of  the  law  eternal,  of  the 
law  of  reason,  and  of  the  law  of  God  :)  nevertheless  I  pray 
thee  shew  me  more  specially  whereupon  it  is  grounded,  as 
thou  thinkest,  as  thou  before  hast  promised  to  do. 

Stud.  I  will  with  good-will  do  therein  that  lieth  in  me, 
for  thou  hast  shewed  me  a  right,  plain,  and  straight  way 
thereto.  Therefore  thou  shalt  understand  that  the  law  of 
England  is  grounded  upon  six  principal  grounds.  First, 
It  is  grounded  on  the  law  of  reason.  Secondly,  On  the 
law  of  God.  Thirdly,  On  divers  general  cstoums  or'  the 
realm.  Fourthly,  On  divers  principles  that  be  called  max- 
ims. Fifthly,  On  divers  particular  customs.  Sixthly, 
On  divers  statutes   made   in   parliaments  by  the   king,  and 


12  Doctor  and  Student. 

by  the  common  council  of  the  realm.  On  which  grounds 
I  shall  speak  in  order  as  they  be  rehearsed  before.  And 
first  of  the  law  of  reason. 

Chap.  V. —  Of  the  first  ground  of  the  law  of  England. 

The  first  ground  of  the  law  of  England  is  the  law  of 
reason,  whereof  thou  hast  treated  before  in  the  second 
chapter,  the  which  is  kept  in  this  realm,  as  it  is  in  all  other 
realms,  and  as  of  necessity  it  must  needs  be,  (as  thou  hast 
said  before.) 

Doct.  But  I  would  know  what  is  called  the  law  of  na- 
ture after  the  laws  of  England. 

Stud.  It  is  not  used  among  them  that  be  learned  in  the 
laws  of  England  to  reason  what  thing  is  commanded  or 
prohibited  by  the  law  of  nature,  and  what  not,  but  all  the 
reasoning  in  that  behalf  is  under  this  manner.  As  when  any 
thing  is  grounded  upon  the  law  of  nature,  they  say,  that 
reason  will  that  such  a  tiling  be  clone  ;  and  if  it  be  prohib- 
ited by  the  law  of  nature,  they  say  it  is  against  reason,  or 
that  reason  will  not  suffer  that  to  be  done. 

Doct.  Then  I  pray  thee  shew  me  what  they  that  be 
learned  in  the  laws  of  the  realm  hold  to  be  commanded  or 
prohibited  by  the  law  of  nature,  under  such  terms,  and  after 
such  manner,  as  is  used  among  them  that  be  learned  in  the 
said  laws. 

Stud.  There  be  put  by  them  that  be  learned  in  the  laws 
of  England  two  degrees  of  the  law  of  reason,  that  is  to  say, 
the  law  of  reason  ■primary,  and  the  law  of  reason  second- 
ary. By  the  law  of  reason  primary  be  prohibited  in  the 
laws  of  England  murder  (that  is,  the  death  of  him  that  is 
innocent),  perjury,  deceit,  breaking  of  the  peace,  and  many 
other  like.  And  by  the  same  law  also  it  is  lawful  for  a  man 
to  defend  himself  against  an  unjust  power,  so  he  keep  due 
circumstance.  And  also  it  any  promise  be  made  by  menace 
to  the  body,  it  is  by  the  law  of  reason  void  in  the  laws  of 
England.  The  other  is  called  the  law  of  secondary  reason, 
the  which  is  divided  into  two  branches,  that  is  to  say,  into 


Dialogue    I. — Chap.   5.  13 

a  law  of  secondary  reason  general^  and  into  a  law  of  sec- 
ondary reason  particular.  The  law  of  a  secondary  reason 
general  is  grounded  and  derived  of  the  general  law,  or 
genera]  custom  of  properly,  whereby  goods  moveable  and 
immoveable  be  brought  into  a  certain  property,  so  that 
every  man  may  know  his  own  thing.  And  by  this  branch 
be  prohibited  in  the  laws  of  England  disseisins,  trespass  in 
lands  and  goods,  resenss,  theft,  unlawful  with-holding  of 
another  man's  goods,  and  such  other.  And  bv  the  same 
law  it  is  a  ground  in  the  law  of  England  that  satisfaction 
must  be  made  for  a  trespass,  and  that  restitution  must  be 
made  of  such  goods  as  one  man  hath  that  belong  to  another 
man  ;  the  debts  must  be  paid,  covenants  fulfilled,  and  such 
other.  And  because  disseisins,  trespass  in  lands  and  goods, 
theft,  and  other  had  not  been  known,  if  the  law  of  property 
had  not  been  ordained  ;  therefore  all  things  that  be  derived 
by  reason  out  of  the  said  law  of  property,  be  called  the 
lazv  of  reason  secondary  general,  for  the  law  of  property 
is  generally  kept  in  all  countries. 

The  law  of  reason  secondary  ■particular  is  the  law  that 
is  derived  of  divers  customs  general  and  particular,  and  of 
divers  maxims  and  statutes  ordained  in  this  realm.  And 
it  is  called  tJic  lazv  of  reason  secondary  particular,  because 
the  reason  in  that  case  is  derived  of  such  a  law  that  is  only 
holden  for  law  in  this  realm,  and  in  none  other  realm. 

Doct.  I  pray  thee  shew  me  some  special  case  of  such  a 
law  of  reason  secondary  particular,  for  an  example. 

Stud.  There  is  a  law  in  England,  which  is  a  law  of  cus- 
tom, that  if  a  man  take  a  distress  lawfully,  that  he  shall 
put  it  in  pound  overt,  there  to  remain  till  he  be  satisfied 
of  that  he  distrained  tor.*  And  then  thereupon  may  be 
asked  this  question,  that  if  the  beasts  die  in  pound  for  lack 
of  meat,  at  whose  peril  die  they?  whether  die  they  at  the 
peril  of  him  that  distrained,  or  of  him  that  oweth  the 
beasts  ?f 

*  Co.  Litt.  47. 
t  2  Inst-  106. 


T4  Doctor   and   Student. 

Doct.  If  the  law  be  as  thou  sayest,  and  that  a  man  for  a 
just  cause  taketh  a  distress,  and  putteth  it  in  the  pound 
overt,*  and  no  law  compelleth  him  that  distrained  to  give 
them  meat, |  then  it  seemeth  of  reason  that  if  the  distress 
die  in  pound  for  lack  of  meat,  that  it  died  at  the  peril  of 
him  that  oweth  the  beasts,  and  not  of  him  that  distrained  ; 
for  in  him  that  distrained  there  can  be  assigned  no  default, 
but  in  the  other  may  be  assigned  a  default,  because  the  rent 
was  unpaid. 

Stud.  Thou  hast  given  a  true  judgment,  and  who  hath 
taught  thee  to  do  so  but  reason  derived  of  the  said  ireneral 
custom?  And  the  law  is  so  full  of  such  secondary  reasons 
derived  out  of  the  general  customs  and  maxims  of  the  realm, 
that  some  men  have  affirmed  that  all  the  law  of  the  realm 
is  the  law  of  reason.  But  that  cannot  be  proved,  as  me 
seemeth,  as  I  have  partly  shewed  before,  and  more  fully 
will  shew  after.  And  it  is  not  much  used  in  the  laws  of 
England,  to  reason  what  law  is  grounded  upon  the  law  of 
the  first  reason  primary,  or  on  the  law  of  reason  secondarv. 
for  they  be  most  commonly  openly  known  of  themselves  ; 
but  for  the  knowledge  of  the  law  of  reason  secondary  is 
greater  difficulty,  and  therefore  therein  dependeth  much  the 
manner  and  form  of  arguments  in  the  laws  of  England. 

And  it  is  to  be  noted,  that  all  the  deriving  of  reason  in 
the  law  of  England  proceedeth  of  the  first  principles  of  the 
law,  or  of  something  that  is  derived  of  them  :  and  there- 
fore no  man  may  right  wisely  judge,  no  groundly  reason 
in  the  laws  of  England,  if  he  be  ignorant  in  the  first  prin- 
ciples. Also  all  birds,  fowls,  wild  beast  of  forest  and  war- 
ren, and  such  other,  be  excepted  by  the  laws  of  England 
out  of  the  said  general  law  and  custom  of  property  \%  tor  by 

*  In  the  case  of  a  distress  for  rent,  it  is  not  necessary  for  the  person  dis- 
training to  take  the  cattle  or  heasts  to  a  pinfold,  as  by  statute  n  G.  2,  c.  19, 
s.  10,  he  mav  impound  them  on  any  convenient  part  of  the  land  chargeable 
with  the  rent. 

t  Finch.  Law,  1 37  ;  6  Mod.  105. 

\  See  Statutes  9  Geo.  1,  c.  22  ;  13  Car.  2,  c.  10;  10  Geo.  c.  32  ;  5  Geo.  3, 
c.  14;  22  and  23  Car.  2,  c.  25,  respecting  the  stealing  and  killing  of  deer, 
robbing  of  warrens,  and  stealing  of  fish. 


Dialogue   I. — Chap.  6.  15 

the  laws  of  the  realm  no  property  may  be  of  them  in  any 
person,  unless  they  be  tame.*  Nevertheless  the  eggs  of 
hawk,  herons,  or  such  other  as  build  in  the  ground  of  any 
person,  be  adjudged  by  the  said  laws  to  belong  to  him  that 
oweth  the  ground. f 

Chap.  VI. — Of  the  second  ground  of  the  lazv  of  Eng- 
land. 
The  second  ground  of  the  law  of  England  is  the  law  of 
God:  and  therefore  for  punishment  of  them  that  offend 
against  the  law  of  God,  it  is  enquired  of  many  courts  in 
this  realm,  if  any  hold  any  opinion  secretly,  or  in  any  other 
manner  against  the  true  catholick  faith  ;  and  also  if  any 
general  custom  were  directly  against  the  law  of  God,  or  if 
any  statute  were  made  directly  against  it :  as  if  it  were  or- 
dained that  no  alms  should  be  given  for  no  necessity,  the 
custom  and  statute  were  void.  Nevertheless  the  statute 
made  in  the  thirty-fourth  year  of  king  Edward  III., % 
whereby  it  is  ordained,  that  no  man,  under  pain  of  impris- 
onment, shall  give  any  alms  to  any  valiant  beggars  that 
may  well  labour,  that  they  may  so  be  compelled  to  labour 
for  their  living,  is  a  good  statute,  for  it  observeth  the  intent 
of  the  law  of  God.  And  also  by  authority  of  this  law- 
there  is  a  ground  in  the  laws  of  England,  that  he  that  is 
accursed  shall  maintain  no  action  in  the  king's  court,  ex- 
cept it  be  in  very  few  cases  ;§  so  that  the  same  excommu- 
nication be  certified  before  the  king's  justices  in  such  man- 
ner as  the  law  of  the  realm  hath  appointed.  ||  And  by  the 
authority  also  of  this  ground  the  law  of  England  admitteth 
the  spiritual  jurisdiction  of  dismes  and  offerings,  and  of  all 
other  things  that  of  right  belong   unto  it  ;1T   and   receivcth 

•  1  II.  P.  C.  511 ;  Fost.  366;   Finch.  Law,  176;  2  Inst.  199;  2  B.  C.  391, 

39-- 

t2B.  C  394. 

X  Repealed  by  1  Ed.  6,  c.  3,  and  21  Jac,  c.  2S. 

§  Excommunication  is  no  plea  in  a  qui  tarn.     1:  Co.  61;  Gilb.  Hist,  of 

a  b.  164. 

II  1  Roll.  Abr.  SS3;  Co.  Litt.  133,  134. 
\  Wood's  Inst.  4;  2  Inst.  625. 


\6  Doctor  and  Student. 

also  all  laws  of  the  church  duly  made,  and  that  exceed  not 
the  power  of  them  that  made  them.  Insomuch  that  in  many 
cases  it  behoveth  the  king's  justices  to  judge  after  the  laws 
of  the  church. 

Doct.  How  may  that  be,  that  the  king's  justices  should 
judge  in  the  king's  courts  after  the  law  of  the  church  ?  for 
it  seemeth  that  the  church  should  rather  give  judgment  in 
such  things  as  it  may  make  laws  of,  than  the  king's  jus- 
tices. 

Stud.  That  may  be  done  in  many  cases,  whereof  I  shall 
for  an  example  put  this  case  :  If  a  writ  of  right  of  ward 
be  brought  of  the  body,  etc.  And  the  tenant  confessing 
the  tenure,  and  the  nonage  of  the  infant,  saith,  that  the 
infant  was  married  in  his  ancestor's  days,  etc.,  whereupon 
twelve  men  be  sworn,  which  give  this  verdict  that  the  infant 
was  married  in  the  life  of  his  ancestor,  and  that  the  woman 
in  the  life  of  his  ancestor  sued  a  divorce,  whereupon  sen- 
tence was  given  that  they  should  be  divorced,  and  that  the 
heir  appealed,  which  hangeth  yet  undiscussed,  praying  the 
aid  of  the  justice  to  know  whether  the  infant  in  this  case 
shall  be  said  married  or  no  :  in  this  case,  if  the  law  of  the 
church  be  that  the  said  sentence  of  divorce  standeth  in  his 
strength  and  virtue  until  it  be  annulled  upon  the  said  appeal, 
that  the  infant  at  the  death  of  his  ancestor  was  unmarried, 
because  the  first  marriage  was  annulled  by  that  divorce,  and 
if  the  law  of  the  church  be,  that  the  sentence  of  the  divorce 
standeth  not  in  effect  till  it  be  affirmed  upon  the  said  appeal ; 
then  is  the  infant  yet  married,  so  that  the  value  of  his  mar- 
riage cannot  belong  unto  the  lord  :  and  therefore  in  this 
case  judgment  conditional  shall  he  given,  etc.  And  in 
likewise  the  king's  justices  in  many  other  cases  shall  judge 
after  the   law  of  the  church,*  like   as  the  spiritual  judges 


-Thus  if  administration  is  granted  to  B.  of  the  goods  of  A.  durante 
minore  estate  of  C-  and  it  comes  out  in  pleading  that  C  is  of  the  age  <>f 
ill.  -n  ycai>,  the  court  ought  to  take  notice  of  the  ecclesiastical  law, 
and  that  the  administration  is  determined.  Cro.  Car.  516;  Cro.  Eliz.  60;:. 
So  if  an  infant  at  the  age  of  fourteen  makes  a  will  of  his  personal  estate, 
the  temporal  courts  will  not  controul  it,  but  take  notice,  that  by  the  spirit- 


Dialogue    I. — Chap.  7.  17 


must  in  main-  cases  form  their  judgment  after  the  king's 
laws.* 

Doct.  How  ma)'  that  be,  that  the  spiritual  judges  should 
judge  after  the  king's  laws?  I  pray  thee  shew  me  some 
certain  case  thereof. 

Stud.  Though  it  be  somewhat  a  digression  from  our  first 
purpose,  yet  I  will  not  with  say  thy  desire,  but  will  with 
good-will  put  thee  a  case  or  two  thereof,  that  thou  mavest 
the  belter  perceive  what  I  mean.  If  A.  and  B.  have  goods 
jointly  and  A.  by  his  last  will  bequeathe  his  portion  therein 
to  C.  and  maketh  the  said  B.  his  executor,  and  dieth,  and 
C.  asketh  the  execution  of  this  will  in  the  spiritual  court : 
in  this  case  the  judges  there  be  bound  to  judge  that  will 
to  be  void,f  because  it  is  void  by  the  laws  of  this  realm. 
And  likewise  if  a  man  be  outlawed,  and  after,  by 
his  will,  bequeath  certain  goods  to  John  at  Stile,  and 
make  his  executors,  and  die,  the  king  seiseth  his  goods, 
and  after  giveth  them  again  to  the  executors,  and  after 
John  at  Stile  sueth  a  citation  out  of  the  spiritual  court 
against  the  executors,  to  have  execution  of  the  will  :  in  this 
case  the  judges  of  the  spiritual  court  must  judge  the  will 
to  be  void,  as  the  law  of  the  realm  is  that  it  is  ;  and  yet 
there  is  no  such  law  of  forfeiture  of  goods  by  outlawry  in 
the  spiritual  law. J 

Chap.  VII. —  Of  the  third  ground  of  the  law  of  Eng- 
land. 

The  third  ground  of  the  law  of  England  standeth  upon 
divers  general  customs  of  old  time  used  through  all  the 
realm,   which   have   been   accepted    and   approved    by  our 

ual  law  a  will  at  that  age,  of  personal  estate,  is  good.  2  Mod.  315;  Go- 
dolphin,  276;  Lord  Raym.  262. 

*  Wood's  Inst.  4. 

t  See  the  reason  of  this,  postea,  186.  But  a  joint  merchant,  or  a  man 
that  has  a  joint  st  ick  in  a  farm,  may  devise  his  share  by  his  will,  and  it 
will  be  good.     2  13.  C.  399;   Co.  Litt.  1S2. 

I4  Burn's  Ecc.  Law,  56;   SwUl.,  part  11,  sec.  21. 
2 


Doctor  and   Student. 


sovereign  lord  the  king,  and  his  progenitors,  and  all  his 
subjects.*  And  because  the  said  customs  be  neither  against 
the  law  of  God,  nor  the  law  of  reason,  and  have  been  alway 
taken  to  be  good  and  necessary  for  the  commonwealth  of 
all  the  realm  ;f  therefore  they  have  obtained  the  strength 
of  a  law,  insomuch  that  he  that  doth  against  them,  doth 
against  justice  :  and  these  be  the  customs  that  properly  be 
called  the  common  lazv.  And  it  shall  alway  be  determined 
by  the  justices  whether  there  be  any  such  general  custom  or 
not,  and  not  by  twelve  men.|  And  of  these  general  cus- 
toms, and  of  certain  principles  that  be  called  maxims,  which 
also  take  effect  by  the  old  custom  of  the  realm  (as  shall 
appear  in  the  chapter  next  following),  dependeth  most  part 
of  the  law  of  this  realm.  And  therefore  our  sovereign  lord 
the  king,  at  his  coronation,  among  other  things,  taketh  a 
solemn  oath  that  he  shall  cause  all  the  customs  of  his  realm 
faithfully  to  be  observed. § 

Doct.   I  pray  thee  shew  me  some  of  these  general  customs. 

Stud.  I  will  with  good-will ;  and  first,  I  shall  shew  thee 
how  the  custom  of  the  realm  is  the  very  ground  of  divers 
courts  in  the  realm,  that  is  to  say,  of  the  chancery,  of  the 
king's  bench,  of  the  common  picas,  and  the  exchequer,  the 
which  be  courts  of  record  ;||  because  none  may  sit  as  judges 
in  these  courts,  but  by  the  king's  letters  patents. 1[  And 
these  courts  have  divers  authorities,  whereof  it  is  not  to 
treat  at  this  time.  Other  courts  there  be  also  only  grounded 
by  the  custom  of  the  realm,  that  be  of  much  less  authority 
than  the  courts  before  rehearsed.  As  in  every  shire  within 
the  realm  there  is  a  court  that  is  called  the  county,  and 

;;;  Wood's  Inst.  4. 

f  2  Inst.  179. 

JNoy's  Max.  iS;  Co.  Litt.  344;  post.  25. 

§  1  B.  C  234;  3  Burn's  Ecc.  Law,  352. 

||  3  B.  C.40,  41,  43. 

^[  The  reason  here  given  for  the  courts  of  Westminster  being  courts  of 
record  does  not  seem  quite  satisfactory.  I  apprehend  they  are  accounted 
courts  of  record  because  their  acts  and  judicial  proceedings  are.  recorded. 
3  B.  C.  24.  Besides,  it  is  not  true  that  all  the  judges  derive  their  authority 
from  the  kind's  letters  patent,  for  the  chief  justice  of  the  king's  bench  is 


Dialogue   I. — Chap.  7.  in 

another  that  is  called  the  sheriff fs  tome;*  and  in  everv 
manor  is  a  court  that  is  called  a  court-baron,  and  to  every 
fair  and  market  is  incident  a  court  that  is  called  a  court  of 
piepowders.  And  though  in  some  statutes  is  made  mention 
sometime  of  the  said  courts  ;  yet  nevertheless,  of  the  first 
institution  of  the  said  courts,  and  that  such  courts  should 
be,  there  is  no  statute  nor  law  written  in  the  laws  of  Eng- 
land. And  so  all  the  ground  and  beginning  of  the  said* 
courts  depend  upon  the  custom  of  the  realm  ;  the  which 
'custom  is  of  so  high  authority,  that  the  said  courts  ne  their 
authorities,  may  not  be  altered,  ne  their  names  changed, 
without  parliament. 

Also  by  the  old  custom  of  the  realm,  no  man  shall  be 
taken,  imprisoned,  disseised,  nor  otherwise  destroyed,  but 
he  be  put  to  answer  by  the  law  of  the  land  :  and  this  custom 
is  confirmed  by  the  statute  of  magna  c/iarta,  cap.  26. 

Also  by  the  old  custom  of  the  realm,  all  men  great  and 
small  shall  do  and  receive  justice  in  the  king's  courts  :  and 
this  custom  is  confirmed  b}^  the  statute  of  Marlb.,  cap.  1. 

Also  by  the  old  custom  of  the  realm,  the  eldest  son  is 
only  heir  to  his  ancestor ;  and  if  there  be  no  sons,  bu 
daughters,  then  all  the  daughters  shall  be  heirs. f  And  so 
it  is  of  sisters  and  other  kinswomen.  And  if  here  be 
neither  son,  daughter,  brother,  nor  sister,  then  shall  the  in- 
heritance ascend  to  the  next  kinsman  or  kinswoman  of  the 
whole  blood  to  him  that  had  the  inheritance,  of  how  many 
degrees  soever  they  be  from  him.|  And  it  there  be  no 
heir  general  nor  special,  then  the  land  shall  escheat  to  the 
lord  of  whom  the  land  is  holden. 

Also  by  the  old  custom  of  the  realm,  lands  shall  never 
ascend  or  descend  from  the  son  to  the  father  or  mother,  nor 

made  by  writ,  and  the  chancellor  by  delivering  the  great  seal  to  him,  and 
taking  an  oatli  to  serve  the  king  and  his  people  faithfully  in  his  office. 
Wood's  Inst.  459. 

*3B.  C  35!  lb.  32,33. 

t  Co.  Litt.  14;  2  B.  C.  .M4. 

fa  B.  C.  224;   lh.  246. 


20  Doctor  and  Student. 

to  any  other  ancestor  on  the  right  line,  but  it  shall  rathei 
escheat  to  the  lord  of  the  fee.* 

Also  if  an  alien  have  a  son  that  is  an  alien,  and  after  is 
made  denizen,  and  hath  another  son,  and  after  purchaseth, 
lands,  and  dieth  ;  the  3'oungest  son  shall  inherit  as  heir, 
and  not  the  eldest,  f 

Also  if  there  be  three  brethren,  and  the  middest  brother 
purchase  lands,  and  dieth  without  heir  of  his  body;  the 
eldest  brother  shall  inherit  as  heir  to  him,  and  not  the 
younger  brother. 

And  if  land  in  fee-simple  descend  to  a  man  by  the  part 
of  his  father,  and  he  dieth  without  heir  of  his  body  ;  then 
the  inheritance  shall  descend  to  the  next  heir  of  the  part  of 
his  father. |  And  if  there  be  no  such  heir  of  the  part  of  his 
father,  then  if  the  father  purchaseth  the  lands,  it  shall  go 
to  the  next  heir  of  the  father's  mother,  and  not  to  the  next 
heir  of  the  son's  mother,  but  it  shall  rather  escheat  to  the 
lord  of  the  fee.  But  if  a  man  purchase  lands  to  him  and 
to  his  heirs,  and  die  without  heir  of  his  body,  as  is  said  be- 
fore ;  then  the  land  shall  descend  to  the  next  heir  of  the 
part  of  his  father,  if  there  be  any  ;  and  if  not,  then  to  the 
next  heir  of  the  part  of  his  mother.  § 

Also  if  the  son  purchaseth  lands  in  fee,  and  dieth  without 
heir  of  his  body;||  the  land  shall  descend  to  his  uncle, 
and  shall  not  ascend  to  his  father  :  but  if  the  father  have 
a  son,  though  it  be  many  years  after  the  death  of  the  elder 
brother,  yet  that  son  shall  put  out  his  uncle,  and  shall  en- 
joy the  lands  as  heir  to  the  elder  brother  for  ever. 

Also  by  the  custom  of  the  realm,  the  child  that  is  born 
before  espousals  is  bastard,  and  shall  not  inherit. IT 

Also  the  eu^tom  of  the  realm  is,  that  no  manner  of  goods 

*  Litt,  sec  3. 

f2  B.  C.  249;   Cro.  Jac.  539. 

J2B.  C  222. 

§  Wood's  Inst.  218. 

||  Litt.,  sec.  3. 

^f  3  New  Abr.,  title  Bastardy,  310,  315. 


Dialogue  I. — Chap.  7.  21 

nor  chattels,  real  nor  personal,  shall  ever  go  to  the  heir,  but 
to  the  executors,  or  to  the  ordinary,  or  administrators.* 

Also  the  husband  shall  have  all  the  chattels  personals 
that  his  wife  had  at  the  time  of  the  espousals  or  after, f 
and  also  chattels  real,  if  he  overlive  his  wife,  but  if  he  sell 
or  give  away  the  chattels  real,  and  die,  by  that  sale  or  gift  the 
interest  of  the  wife  is  determined,  or  else  they  shall  remain 
to  the  wife,  if  she  overlive  her  husband. \  Also  the  hus- 
band shall  have  all  the  inheritance  of  his  wife,  whereof  he 
was  seised  in  deed  in  the  right  of  his  wife  during  the  es- 
pousals, in  fee,  or  in  fee-tail  general, §  for  term  of  life,  if 
he  have  any  child  by  her,  to  hold  as  tenant  by  the  curtesy 
of  England  ;  and  the  wife  shall  have  the  third  part  of  the 
inheritance  of  her  husband,  whereof  he  was  seised  in  deed 
or  in  law  after  the  espousals,  etc.  But  in  that  case  the  wife 
at  the  death  of  her  husband  must  be  of  the  age  of  nine 
years,  or  above,  or  else  she  shall  have  no  dowry.  j| 

Doct.  What  if  the  husband  at  his  death  be  within  the 
age  of  nine  years  ? 

Stud.  I  suppose  she  shall  yet  have  her  dower.  Also  the 
old  law  and  custom  of  the  realm  is,  that  after  the  death  of 
every  tenant  that  holdeth  his  land  by  knights  service,  the 
lord  shall  have  the  ward  and  marriage  of  the  heir,  till  the 
heir  come  to  the  age  of  twenty-one  years  \\  and  if  the  heir 
in  that  case  be  of  full  age  at  the  death  of  his  ancestor,  then 
he  shall  pay  to  his  lord  his  relief,  which  at  the  common 
law  was  not  certain,  but  by  the  statute  of  magna  charta  it 
is  put  in  certain  ;**  that  is  to  say,  for  every  whole  knight's 
fee  to  pay  C.  s.  and  for  a  whole  barony  to  pay  a  hundred 
marks  lor  relief,  and  for  a  whole  earldom  to  pav  C.  /.  and 

*  Off",  of  Executor,  53,  57,  5S,  59;  post.   130. 
fCo.  Lilt.  351. 
-  Roll's  Abr.  3}2. 

§  Likewise  it  seems  thai  the  husband  shall  be  tenant  by  the  curtesy,  if  he 
is  seized  in  right  of  his  wife  of  the  special  tail.     Co.  Litt.  29. 
j|  Litt.,  sec.  36;  Co.  Litt.  33;  2  Inst.  234. 
U  Litt.,  sec.  103. 
**2  B.  C.  66;   Litt.,  sec.  112. 


22  Doctor  and  Student. 

after  that  rate.  And  if  the  heir  of  such  a  tenant  be  a  wo- 
man, and  she,  at  the  death  of  her  ancestor,  be  within  the 
age  of  fourteen  years,  then  by  the  common  law  she  should 
have  been  in  ward  only  till  fourteen  years,  but  by  the  stat. 
of  W.  i,  in  such  case  she  shall  be  in  ward  till  sixteen  years.* 
And  if  at  the  death  of  her  ancestor  she  be  of  the  a«;e  of 
fourteen  years,  or  above,  she  shall  be  out  of  ward,  though 
the  land  be  holden  of  the  king,  and  then  she  shall  pay  re- 
lief as  an  heir  male  shall. f 

Also  of  lands  holden  in  socage,  if  the  ancestor  die,  his 
heir  being  within  the  age  of  fourteen  years,  the  next  friend 
to  the  heir,  to  whom  the  inheritance  may  not  descend,  shall 
have  the  ward  of  his  body  and  lands  till  he  shall  come  to 
the  age  of  fourteen  years,  and  then  he  may  enter.  And 
when  the  heir  cometh  to  the  age  of  twenty-one  years,  then 
the  guardian  shall  yield  him  an  account  for  the  profits 
thereof  by  him  received. X 

Also  such  an  heir  in  socage,  for  his  relief,  shall  double 
his  rent  to  the  lord  the  year  following  the  death  of  his  an- 
cestor :  as  if  his  ancestor  held  by  I2d.  rent,  the  heir  in  the 
year  following  shall  pay  the  I2d.  for  his  rent  and  other  I2d. 
for  his  relief;  and  the  relief  he  must  pay,  though  he  be 
within  age  at  the  death  of  his  ancestor.  § 

Also  there  is  an  old  law  and  custom  in  this  realm, ||  that 
a  freehold  by  way  of  feoffment,  gift,  or  lease,  passeth  not 
without  livery  of  seisin  be  made  upon  the  land  according,^ 
though  a  deed  of  feoffment  be  thereof  made  and  delivered  : 

*  Litt.,  sec.  103;  2  B.  C.  67. 

t  Kitchen  on  Courts,  no;   2  B.  C  67. 

I  Litt.,  sec.  123  ;   Kitchen  on  Courts,  1 1  r ;   Hargrave's  Ed.  of  Co.  Litt.  89. 

§  Litt.,  sec.  127. 

||  Finch    Law,  132  ;   Noy's  Max.  59. 

If  It  is  not  absolutely  necessary,  though  perhaps  it  is  the  better  way  to 
make  livery  and  seisin  upon  the  land;  for  if  it  is  made  in  sight  of  it  only 
by  the  words,  "  I  give  you  yonder  land,  enter  and  take  possession."  This  is 
sufficient  in  law  to  pass  the  freehold,  if  the  feo-ffee  enters  during  the  life 
of  the  feoffor.  2  B.  C  316.  This  method  of  alienating  property  by  feoff- 
ment with  livery  and  si-isin,  though  tlie  usual  conveyance  of  land  for  a 
long  series  of  years,  is  now  almost  superseded  by  the  modern  convey- 
ance of  lease  and  release,  which,  in  fact,  amounts  to  a  feoffment. 


Dialogue   I. — Chap.  7.  23 

but  byway  of  surrender,  partition  and  exchange,  a  freehold 
may  pass  without  livery.* 

Also  if  a  man  make  a  will  of  land  whereof  he  is  seised 
in  his  demesne  as  of  fee,  that  will  is  void  :f  but  it  it  had 
stood  in  leoffee's  hands,  it  had  been  good.  And  also  in 
London  such  a  will  is  good  by  the  custom  of  the  city,  if 
it  he  enrolled. X 

Also  a  lease  for  term  of  years  is  but  a  chattel  by  the  law, 
and  therefore  it  may  pass  without  any  livery  of  seisin  :  but 
otherwise  it  is  of  a  state  for  term  of  life,  for  that  it  is  a  free- 
hold in  the  law,  and  therefore  livery  must  be  made,  or  else 
the  freehold  passeth  not.§ 

Also  by  the  old  custom  of  the  realm  a  man  may  distrain 
for  rent-service  of  common  right ;  and  also  for  a  rent  re- 
served upon  a  gilt  in  tail,  a  lease  for  term  of  life,  of  years, 
and  at  will  :j|  and  in  such  case  the  lord  may  distrain  the 
beasts  of  tenants,  as  soon  as  they  come  upon  the  ground  ; 
but  the  beasts  of  strangers  that  come  in  but  by  manner  of 
an  escape  he  may  not  distrain,  till  they  have  been  levant 
and  couchant  upon  the  ground. IF  But  for  debt  upon  an  ob- 
ligation, nor  upon  a  contract,  nor  for  account,  ne  yet  for 
arrearages  of  account,  nor  for  no  manner  of  trespass,** 
reparations,  nor  such  other,  no  man  may  distrain. ff 

And,  by  the  old  custom  of  the  realm,  all  issues  that  shall 
be  joined  between  party  and  party  in  any  court  of  record 
within  the  realm,  except  a  few  whereof  it  needeth  not  to 
treat  at  this  time,  must  be  tried  by  twelve  free  and  lawful 
men  of  the  visne,|J  that  be  not  of  affinity  to  none  of  the 

*  Likewise  by  confirmation,  devise,  fine,  or  recovery,  and  since  the  stat- 
ute of  uses,  by  bargain  and  sale  enrolled,  lease,  and  release,  etc 

t  Post.  58. 

X  I  Roll.  Abr.  556;   post.  35. 

§2B.  C.  314. 

tl  Lift. ,  sec.  ji}.  214;   Co.  Litt.  142. 

•fa  Lutw.  1573,  1577. 

**This  cannot  be  true,  for  a  man  may  distrain  for  trespass  damage- 
feasant. 

tt  Post.  123. 

Xt  It  was  formerly  the  custom  for  jurors  to  come  from  the  vicinity  or  bun- 


24  Doctor   and   Student. 

parties  ;  and,  in  other  courts  that  be  not  of  record,  as  in  the 
count}',  court-baron,  hundred,  and  such  other  like,  they 
shall  be  tried  by  the  oath  of  the  parties,  and  not  otherwise, 
unless  the  parties  assent  that  it  shall  be  tried  by  the  homage.* 
And  it  is  to  be  noted  that  lords,  barons,  and  all  peers  of  the 
realm  be  excepted  out  of  such  trials,  if  they  will, J  but  if 
they  will  wilfully  be  sworn  therein,  some  say  it  is  no  error  : 
and  they  may,  if  they  will  have  a  writ  out  of  the  chancery 
directed  to  the  sheriff,  commanding  him  that  he  shall  not 
impanel  them  upon  no  inquest.  J 

And  of  this  that  is  said  before  it  appeareth,  that  the  cus- 
toms aforesaid,  or  other  like  unto  them,  whereof  be  very 
many  in  the  laws  of  England,  cannot  be  proved  to  have 
the  strength  of  law  only  by  reason.  For  how  may  it  be 
proved  by  reason  that  the  eldest  son  shall  only  inherit 
his  father,  and  the  younger  to  have  no  part ;  or  that  the 
husband  shall  have  the  whole  land  for  term  of  his  life  as 
tenant  by  the  curtesy,  in  such  manner  as  before  appeareth, 
and  that  the  wife  shall  have  only  the  third  part  in  the  name 
of  her  dower  ;  and  that  her  husband  shall  have  all  the  goods 
of  his  wife  as  his  own,  and  that  if  he  die,  the  wife  living, 

ithat  his  executors  shall  have  the  goods,  and  not  the  wife? 
All  these  and  such  other  cannot  be  proved  only  by  reason, 
that  it  should  be  so,  and  no  otherwise,  although  they  be 
reasonable  ;  and  that,  with  the  custom  therein  used,  sufficeth 


dred  where  the  matter  in  dispute  arose,  pursuant  to  the  maxim,  xu'eini  vicin- 
orum  facto prcEsnmunttir  scire,  but  now  by  stat.  4  and  5  Ann-,  c.  16,  the 
jury  are  to  come,  e  corf  ore  comitattts,  from  the  body  of  the  county,  in  which 
the  action  is  triable  3  B.  C.  360.  But  this  statute  does  not  extend  to 
indictments  or  other  criminal  suits,  and  it  is  conceived  that  no  act  has 
been  made  to  include  any  such,  except  the  stat.  24  G.  2,  2  c.  28,  which  re- 
lates to  actions  on  penal  statutes.  However,  notwithstanding  the  law 
stands  thus  as  to  criminal  prosecutions,  vet  it  is  the  practice  of  every  day 
for  the  sheriff  to  summon  juries  from  the  county  without  the  least  regard 
to  the  visne  of  each  indictment,  though  it  gives  the  prisoner  an  opportu- 
nity, if  he  pleases,  of  challenging  for  default  of  hundredors.  2  II.  II.  P. 
C.  272.  273. 

Co.  Litt.  158. 

t  Trials  per  pais,  1st  part,  105. 

J  3  B.  C.  36:  ;  Vin.  Abr.,  title  Trial,  208. 


Dialogue   I. — Chap. 


in  the  law,  and  a  statute  made  against  such  general  customs 
ought  to  be  observed,  because  they  be*  not  merely  the  law 
of  reason. 

Also  the  law  of  property  is  not  the  law  of  reason,  but  the 
law  of  custom,  howbeit  that  it  is  kept,  and  is  also  most 
necessary  to  be  kept,  in  all  realms,  and  among  all  people  ; 
and  so  it  may  be  numbered  among  the  general  customs  of 
the  realm.  And  it  is  to  understand  that  there  is  no  statute 
that  treateth  of  the  beginning  of  the  said  customs,  ne  why 
they  should  be  holden  for  law ;  and  therefore  after  them 
that  be  learned  in  the  laws  of  the  realm,  the  old  custom  of 
the  realm  is  the  only  and  sufficient  authority  to  them  in 
that  behalf.  And  I  pray  thee  shew  me  what  doctors  hold 
then  in,  that  is  to  say,  whether  a  custom  onl"  be  a  sufficient 
authority  of  any  law. 

Doct.  Doctors  hold  that  a  law  grounded  upon  a  custom 
is  the  most  surest  law  ;  but  this  thou  must  always  under- 
stand therewith,  that  such  a  custom  is  neither  contrary  to 
the  law  of  reason,  nor  the  law  of  God.*  And  now  I  pray 
thee  shew  me  somewhat  of  the  maxims  of  the  laws  of  Eng- 
land, whereof  thou  hast  made  mention  before  in  the  4th 
chapter.  \ 

Stud.   I  will  with  good-will. 

Chap.  VIII. — Of  the  fourth  ground  of  the  laiu  of  Eng- 
land. 

The  fourth  ground  of  the  law  of  England  standeth  in 
divers  principles  that  be  called  in  the  law  maxims,  the 
which  have  been  always  taken  for  law  in  this  realm  \\  so 
that  it  is  not  lawful  for  any  that  is  learned  to  denv  them  ; 
for  every  one  of  those  maxims  is  sufficient  authority  to 
himself.  And  which  is  a  maxim,  and  which  not,  shall 
alway   be    determined   by   the   judges,    and   not   by   twelve 

*  Co.  Litt.  141. 

t  Kitchen  on  Courts,  title  Customs. 

\  Co.  Litt.  10,  67. 


16  Doctor  and  Student. 

men.*  And  it  needeth  not  to  assign  any  reason  why  they 
were  first  received  for  maxims,  for  it  sufficeth  that  they 
be  not  against  the  law  of  reason,  nor  the  law  of  God,  and 
that  they  have  always  been  taken  for  a  law.  And  such 
maxims  be  not  only  holden  for  law,  but  also  other  cases 
like  unto  them,  and  all  things  that  necessarily  follow  upon 
the  same  are  to  be  reduced  to  the  like  law  ;  and  therefore 
most  commonly  there  be  assigned  some  reasons  or  con- 
siderations why  such  maxims  be  reasonable,  to  the  intent 
that  other  cases  like  may  the  more  conveniently  be  applied 
to  them.  And  they  be  of  the  same  strength  and  effect  in 
the  law  as  statutes  be.  And  though  the  general  customs 
of  the  realm  be  the  strength  and  warrant  of  the  said  maxims, 
as  they  be  of  the  general  customs  of  the  realm  ;  yet  because 
ihe  said  general  customs  be  in  a  manner  known  through 
the  realm,  as  well  to  them  that  be  unlearned  as  learned, 
and  may  lightly  be  had  and  known,  and  that  with  little 
study,  and  the  maxims  be  only  known  in  the  king's  courts, 
or  among  them  that  take  great  study  in  the  law  of  the 
realm,  and  among  few  other  persons;  therefore  they  be  set 
in  this  writing,  for  several  grounds,  and  he  that  listeth  may 
so  account  them,  or  if  he  will,  he  may  take  them  for  no 
ground,  after  his  pleasure.  Of  which  maxims  I  shall  here- 
after shew  thee  part. 

First,  There  is  a  maxim  f  that  escuage  uncertain  maketh 
knight's  service .% 

♦Noy'sMax.  18;  ante,  18. 

t  Litt,  sec   1 20. 

%  By  the  statute  12  Car.  2,  c  24,  "  for  taking  away  the  court  of  wards,  and 
liveries  and  tenures  in  knight's  service,  and  purveyance,  and  for  settling  a 
revenue  upon  his  majesty,"  it  iscnacted,  that  all  wardships,  primer  seisins, 
and  ousterlemains,  values  and  forfeitures  of  marriage,  and  all  tenures  by 
homage,  fines  for  alienation,  knight's  service,  and  escuage,  and  also  acts 
for  marrying  the  daughter  or  knighting  the  son,  and  all  tenures  of  the 
king  in  capite,  shall  be  taken  away.  And  by  the  same  statute,  all  sorts  of 
tenure  held  of  the  king,  or  others,  are  turned  into  free  and  common  socage, 
except  tenures  in  frankalmoign  copyholds,  and  the  honorary  services  of 
grand  serjeantry. 


Dialogue   I. — Chap.   8.  27 

Also  there  is  another  maxim,*  that  escuage  certain  makes 
socage. 

Also,  that  he  that  holdeth  by  castle-guard,  holdeth  by 
knight's  service, f  but  he  holdeth  not  by  escuage  :  and  that 
he  that  holdeth  by  xxs.  to  the  guard  of  a  castle,  holdeth  by 
socage. 

Also  there  is  a  maxim 4  that  a  discent  taketh  away  an 
entry. 

Also,  that  no  prescription  in  lands  maketh  a  right. § 

Also,  that  a  prescription  of  rent  and  profits  apprender  out 
of  land  maketh  a  right.  || 

Also,  that  the  limitation  of  a  prescription  generally  taken 
is  from  the  time  that  no  man's  mind  runneth  to  the  con- 
trary.! 

Also,  that  assigns  may  be  made  upon  lands  given  in  fee, 
for  term  of  life,  or  for  term  of  years,  though  no  mention 
be  made  of  assigns ;  and  the  same  law  is  of  a  rent  that  is 
granted  ;  but  otherwise  it  is  of  a  warranty,  and  of  a  cov- 
enant. 

Also,  that  a  condition  to  avoid  a  freehold  cannot  be 
pleaded  without  deed  ;  but  to  avoid  a  gift  of  chattel,  it  may 
be  pleaded  without  deed.** 

Also,  that  a  release  or  confirmation  made  by  him,  that  at 
the  time  of  the  release  or  confirmation  made  had  no  right, 
is  void  in  the  law,  though  a  right  come  to  him  after  ;ff  ex- 
cept it  be  with  warranty,  and  then  it  shall  bar  him  to  all 
right  that  he  shall  have  after  the  warranty  made. 

Also,  that  a  right  or  title  of  action  that  only  dependeth  in 
action,  cannot  be  given  or  granted  to  none  other  but  only 

*  Co.  Litt.  87. 

fib. 

J  Litt.,  sec.  3S5. 

§  Finch.  132. 

||  2  B.  C.  264. 

IfPost.  30S;  Co.  Litt.  114. 

**  Vin.  Abi.,  title  Facts,  67.  * 

tfVin.  Abr.,  title  Release,  299. 


28  Doctor  and  Student. 

to  the  tenant  of  the  ground,  or  to  him  that  hath  the  rever- 
sion or  remainder  of  the  same  land.* 

Also,  that  in  an  action  of  debt  upon  a  contract,  the  de- 
fendant may  wage  his  law  :f  but  otherwise  it  is  upon  a 
lease  of  lands  for  term  of  years,  or  at  will.  J 

Also,  that  if  an  exigent,  in  case  of  felony,  be  awarded 
against  a  man,  he  hath  thereby  forthwith  forfeited  his  goods 
to  the  king.§ 

Also,  if  the  son  be  attainted  in  the  life  of  the  father,  and 
after  he  purchaseth  his  charter  of  pardon  of  the  king,  and 
after  the  father  dieth. ;  j|  in  this  case  the  land  shall  escheat 
to  the  lord  of  the  fee,  insomuch  that  though  he  have  a 
vounger  brother,  yet  the  land  shall  not  descend  to  him  :  for 
by  the  attainder  of  the  elder  brother  the  blood  is  corrupt, 
and  the  father-in-law  died  without  heir. 

Also,  if  an  abbot  or  prior  alien  the  lands  of  his  house, 
and  dieth  ;1[  in  this  case,  though  his  successor  have  right 
to  the  lands,  }ret  he  may  not  enter,  but  he  must  take  his 
action  that  is  appointed  him  by  law. 

Also,  there  is  a  maxim  in  the  law,  that  if  a  villein  pur- 
chase lands,  and  the  lord  enter,  he  shall  enjoy  the  land  as 

*  10  Rep.  48;   Shep.  Touch.  229. 

t  Wager  of  law  is  where  defendant  swears  before  compurgators  that  he 
owes  the  plaintiff  nothing.  Formerly  this  practice  was  much  in  use,  as 
appears  by  its  making  a  conspicuous  part  of  our  English  jurisprudence. 
But  it  is  now  only  in  actions  of  debt  upon  simple  contract,  or  for  amerce- 
ments in  actions  of  detinue  or  account,  where  the  debt  may  have  been 
paid,  and  the  accounts  balanced,  without  any  evidence  of  either,  that  de- 
fendant can  wage  his  law,  and  not  where  there  is  any  specialty  by  bond  or 
deed;  and  as  defendant  is  allowed  to  wage  his  law  in  an  action  of  debt,  it 
is  but  seldom  brought  upon  a  simple  contract,  being  supplied  by  an  ac- 
tion of  trespass  on  the  case,  for  the  breach  of  a  promise  or  assumpsit;  and 
this  being  an  action  of  trespass,  no  law  can  be  waged  therein;  so  that 
wager  of  law  is  now  quite  out  of  use,  but  still  it  is  not  out  of  force.  Black. 
Com.  3  V.  341. 

X  12  Mod.  679;  2  Salk.  6S4;  Co.  Litt.  295. 

§  This  is  not  law,  for  in  this  case  he  forfeits  both  real  and  personal  es- 
tate to  the  lord. 

||  2  B.  C.  253;   Co.  Litt.  13. 

If  Post.  32. 


Dialogue   I. — Chap.  8.  29 

his  own  :*  but  if  the  villein  alien  before  the  lord  enter,  the 
alienation  is  good.     And  the  same  law  is  of  goods. f 

Also,  if  a  man  steal  goods  to  the  value  of  twelve  pence, 

or  above,  it  \s felony,  and  he  shall  die  for  it.J  And  if  it 
be  under  the  value  of  twelve  pence,  then  it  is  but  fielil  lar- 
ceny, ami  he  shall  not  die  for  it,§  but  shall  be  otherwise  pun- 
ished alter  the  discretion  of  the  judges,  except  it  be  taken 
from  the  person  ;  for  if  a  man  lake  any  thing,  how  little 
soever  it  be,  from  a  man's  person,  feloniously,  it  is  called 
robbery,  and  he  shall  die  for  it.|| 

Also,  he  that  is  arraigned  upon  an  indictment  of  felony, 
shall  be  admitted,  in  favor  of  life,  to  challenge  thirty-six 
jurors  peremptorily  ;1[  but  if  he  challenge  any  above  that 
number,  the  law  taketh  him  as  one  that  hath  refused  the 
law,  because  he  hath  refused  three  whole  inquests,  and 
therefore  he  shall  die  :  but  with  cause  he  may  challenge  as 
many  as  he  hath  cause  of  challenge  to.  And  lurther,  it  is 
to  be  understood,  that  such  peremptory  challenge  shall  not 
be  admitted  in  appeal,**  because  it    is  at  the  suit  of  the 

party.  |t 

x\lso,  the   land  of  every  man  is  in  the  law  inclosed  from 

•Litt.,  sec.  ;;j;  Finch.  159. 

t  But  the  law  was  widely  different  in  the  case  of  the  king,  who  had  a 
villein,  lor  notwithstanding  the  alienation,  he  might  enter.     Perk.,  sec.  29. 

J  1  II.  P.  C.  503. 

§  lb.  504. 

II  lb.  532,  536. 

f  The  author  or  his  printer  is  not  here  quite  correct  as  to  the  number  of 
jurors,  which  it  was  allowed  the  prisoners  to  challenge  in  cases  of  felony; 
as  the  boundary  fixed  by  the  common  law,  and  which  was  thought  to  be 
reasonable  was  only  thirty-live,  that  is,  one  under  three  fail  juries,  and 
therefore  if  the  prisoner  challenged  thirty-six,  he  was  sentenced  to  the 
peine  forte  et  dure,  as  one  that  had  no  intention  to  be  tried  at  all.  The 
number  thirty-live  may  now  be  challenged  by  the  prisoner  in  cases  of  high 
and  petit  treason,  but  in  cases  of  murder,  or  felony,  by  stat.  22  II.  S, 
c.  14,  he  can  make  no  more  than  twenty  peremptory  challenges.  2  II.  P. 
C.  269;   2  Hawk.  414;  Co.  Litt.  156. 

**  Kitchen  on  Courts.  52. 

tt  But  in  Yiner's  abridgments,  title  Trial,  252,  it  is  laid  down,  that  a 
peremptory  challenge  may  be  taken  in  an  appeal,  and  with  as  good  reason 
as  in  a  prosecution  at  the  suit  of  the  king. 


30  Doctor  and  Student. 

other,  though  it  lie  in  the  open  field  :  and  therefore  if  a 
man  do  a  trespass  therein,  the  writ  shall  be,  JQiiare  clausum 
/regit. 

Also,  the  rents,  commons  of  pasture,  of  turbary,  rever- 
sions, remainders,  nor  such  other  things  which  lie  not  in 
manual  occupation,  may  not  be  given  nor  granted  to  none 
other  without  writing.* 

Also,  that  he  that  recovereth  debt  or  damages  in  the: 
king's  courts,  by  such  an  action  wherein  a  capias  lay  in  the 
process,  may  within  a  year  after  the  recovery  have  a  capias 
ad  satisfaciendum ,  to  take  the  body  of  the  defendant,  and 
to  commit  him  to  prison  till  he  have  paid  the  debt  and  dam- 
ages :  but  if  there  lay  no  capias  in  the  first  action,  then  the 
plaintiff  shall  have  no  capias  ad  satisfaciendum ,  but  must 
take  a  fieri  facias,  or  an  elegit  within  the  year,  or  a  scire 
facias  after  the  year,  or  within  the  year,  if  he  will. 

Also,  if  a  release  or  confirmation  be  made  to  him  that,  at 
the  time  of  the  release  made,  had  nothing  in  the  land,  etc., 
the  release  or  confirmation  is  void,  except  in  certain  cases, 
as  to  vouch,  and  certain  other  which  need  not  here  to  be  re- 
membered, f 

Also,  there  is  a  maxim  in  the  law  of  England,  that  the 
king  may  disseise  no  man,  nor  that  no  man  may  disseise 
the  king,  ne  pull  any  reversion  or  remainder  out  of  him,.} 

Also,  the  king's  excellency  is  so  high  in  the  law,  that  no 
freehold  may  be  given  to  the  king,  nor  be  derived  from  him, 
but  by  matter  of  record. § 

Also,  there  was  sometime  a  maxim  and  a  law  of  England, 
that  no  man  should  have  a  writ  of  right  but  by  special  suit 
to  the  king,  and  for  a  fine  to  be  made  in  the  chancery  for 
it.  But  these  maxims  be  changed  by  the  statute  of  magna 
charta,  cap.  16,  where  it  is  said  thus,  nulli  negabimus ',  mil// 
vendemus  rectum  vcljusliliam.\\     And  by  the  words,  Null/ 

*  Co.  Litt.  48;   121   Stat.  ;  29  Car.  2,  c.  3;  2  Cro.  217;  Finch.  Law,  10S. 

fCo.  Litt.  265,  270. 

I3B.  C  257. 

§2  B.  C.  346;  Noy's  Max.  4. 

||  2  Inst.  55;   1  B.  C.  141. 


Dialogue    I. — Chap.  9.  31 

negabimus,  a  man  shall  have  a  writ  of  right  of  course  in 
the  eh  tin  eery  without  suing  to  the  king  for  it:  and  by  the 
words,  Nulli vendemus ,  he  shall  have  it  without  fine.  And 
so  many  times  the  old  maxims  of  the  law  be  changed  by 
statutes.  Also,  though  it  be  reasonable,  that  for  the  mani- 
fold diversities  of  actions  that  be  in  the  laws  of  England, 
there  should  be  diversities  of  process,  as  in  the  real  actions 
alter  one  manner,  and  in  personal  actions  after  another 
manner  ;  yet  it  cannot  be  proved  merely  by  reason,  that  the 
same  process  ought  to  be  had,  and  none  other  :  for  by  statute 
it  might  be  altered.  And  so  the  ground  of  the  said  pro- 
cess is  to  be  referred  only  to  the  maxims  and  customs  of 
the  realm. 

And  I  have  shewed  thee  these  maxims  before  rehearsed, 
not  to  the  intent  to  shew  thee  specially  what  is  the  cause  of 
the  law  in  them,  for  that  would  ask  a  great  respite  :  but  I 
have  shewed  them  only  to  the  intent  that  thou  mayest  per- 
ceive that  the  said  maxims,  and  other  like,  may  be  conve- 
niently set  for  one  of  the  grounds  of  the  laws  of  England. 
Moreover  there  be  divers  cases  whereof  I  am  in  doubt 
whether  they  be  only  maxims  of  the  law,  or  that  the}-  be 
grounded  upon  the  law  of  reason  ;  wherein  I  pray  thee  let 
me  hear  thine  opinion. 

Doct.  I  pray  thee  shew  those  cases  that  thou  meanest ; 
and  I  shall  make  thee  answer  therein  as  I  shall  see  cause. 

Chap.  IX. — Hereafter  follow  divers  cases  wherein  the 
student  doubt eth  whether  they  be  only  max/ins  of  the 
law,  or  that  tJiey  be  grounded  upon  the  law  of  reason. 

The  law  of  England  is,  that  if  a  man  command  another 
to  do  a  trespass,  and  he  doth  it,  that  the  commander  is  a 
trespasser.*  And  1  am  in  doubt,  whether  that  it  be  only 
by  a  maxim  of  the  law,  or  that  it  be  by  the  law  of  reason. 

Also,  I  am   in   doubt  upon  what  law  it  is  grounded,  that 

*  Br.  Trespass,  pi.  148- 


32 


Doctor  and  Student. 


the  accessary  shall  not  be  put  to  answer  before  the  prin- 
cipal, etc.* 

Also,  the  law  is,  that  if  an  abbotf  buy  a  thing  that  cometh 
to  the  use  of  the  house,  and  dieth,  that  his  successor  shall 
be  charged 4  And  I  am  somewhat  in  doubt  upon  what 
ground  that  law  dependeth. 

Also,  that  he  that  hath  possession  of  land,  tho'  it  be  by 
disseisin,  hath  right  against  all  men  but  against  him  that 
hath  right.  § 

Also,  that  if  an  action  real  be  sued  against  any  man  that 
hath  nothing  in  the  thing  demanded,  the  writ  shall  abate 
at  the  common  law. 

Also,  that  by  the  alienation  of  the  tenant,  hanging  the 
writ,  or  his  entry  into  religion,  or  if  he  be  made  a  knight, 
or  if  she  be  a  woman,  and  take  an  husband  hanging  the 
writ,  that  the  writ  shall  not  abate.  || 

Also,  if  land  and  rent  that  is  going  out  of  the  same  land, 
come  into  one  man's  hand  of  like  estate,  and  like  surety  of 
title,  the  rent  is  extinct. 1[ 

Also,  if  land  descend  to  him  that  hath  right  to  the  same 
land  before,  he  shall  be  remitted  to  his  better  title,  if  he 
will.** 

Also,  if  two  titles  be  concurrent  together,  that  the  eldest 
title  shall  be  preferred. ff 

:;:'By  the  commor  law  the  accessary  shall  not  be  compelled  to  answer  to 
the  indictment  till  the  principal  is  tried;  but  if  he  will  waive  that  privi- 
lege, he  may,  and  put  himself  upon  his  trial  before  the  principal,  i  H.  II. 
P.  C.  623.  The  law,  however,  is  now  so  much  altered  by  statute,  that  re- 
ceivers of  stolen  goods,  knowing  them  to  be  stolen,  may  be  compelled  fo 
answer  for  the  misdemeanor,  although  the  principal  can  not  be  taken.  1 
Ann.,  c.  9,  s.  2;  5  Ann.,  c.  31,  s.  5;  4  Geo.  I,  c.  11,  and  see  4  B.  C.  31S,  and 
Foster's  Crown  Law,  373- 

f  By  the  statutes  27  H.  8,  c.  28;  31  II.  8,  c.  13:  32  II.  S,  c.  14,  s.  1,  and 
37  II.  S,  c.  4,  all  monasteries  and  religious  houses  are  dissolved,  and  the 
whole  body  of  abbots  and  priors  totally  eradicated. 

J  B.  Abbe,  pi.  9;   22  II.  6,  56. 

§  3  New  A iir.  <j~r 

||  Viner's  A.br.,  title  Abatement. 

\  Wood's  Inst.  195. 

**  lb.  528. 

tt  Noy's  Max.  15. 


Dialogue    I. — Chap.  9.  ^3 

Also,  that  every  man  is  bound  to  make?  recompence  for 
such  hurt  as  his  beasts  shall  do  in  the  corn  or  grass  of  his 
neighbour,  though  he  know  not  that  they  were  there. 

Also,  if  the  demandant  or  plaintiff,  hanging  his  writ,  will 
enter  into  the  thing  demanded,  his  writ  shall  abate.*  And 
it  is  many  times  very  hard  and  of  great  difficulty  to  know 
what  eases  ot"  the  law  of  England  be  grounded  upon  tin- 
law  of  reason,  and  what  upon  custom  of  the  realm  ;  and 
though  it  be  hard  to  discuss  it,  it  is  very  necessary  to  be 
known,  lor  the  knowledge  of  the  perfect  reason  of  the  law. 
And  if  an)'  man  think  that  these  cases  before  rehearsed  be 
grounded  upon  the  law  of  reason,  then  he  may  refer  them 
to  the  first  ground  of  the  law  of  England,  which  is  the  law  of 
reason,  whereof  is  made  mention  in  the  fifth  chapter,  t 
And  if  any  man  think  that  they  be  grounded  upon  the  law 
of  custom,  then  he  may  refer  them  to  the  maxims  of  the 
law,  which  be  assigned  for  the  fourth  ground  of  the  law  of 
England,  whereof  mention  is  made  in  the  eighth  chapter, 
as  before  appeareth.| 

Doct.  But  I  pray  thee  shew  me  by  what  authority  it  is 
proved  in  the  laws  of  England  that  the  cases  which  thou 
hast  put  before  in  the  eighth  ehapter,  and  such  other  which 
thou  callest  maxims,  ought  not  to  be  denied,  but  ought  to 
be  taken  as  maxims.  For  sith  the}7  cannot  be  proved  by 
reason,  as  thou  agreest  thyself  they  cannot,  they  may  as 
lightly  be  denied  as  affirmed,  unless  there  be  some  sufficient 
authority  to  approve  them. 

Stud.  Many  of  the  customs  and  maxims  of  the  laws  of 
England  be  known  by  the  use  and  the  custom  of  the  realm 
so  apparently  that  it  needeth  not  to  have  any  law  written 
thereof. §  For  what  needeth  it  to  have  any  law  written  that 
the  eldest  son  shall  inherit  his  father,  ||  or  that  all  the  daugh- 

Doct.  PI.  5. 
t  Ante,  13. 

%  Ante,  25. 
§  1  B.  C.  64. 

||  Ante,  19. 

3 


34  Doctor  and  Student. 

ters  shall  inherit  together  as  one  heir,  if  there  be  no  son:* 
or  that  the  husband  shall  have  the  goods  and  chattels  of  his 
wife  that  she  hath  at  the  time  of  the  espousals,  or  after  :f 
or  that  a  bastard  shall  not  inherit  as  heir ;  or  the  executors 
shall  have  the  disposition  of  all  the  goods  of  their  testator  ;$ 
and  if  there  be  no  executors,  that  the  ordinary  shall  have 
it,  and  the  heir  shall  not  meddle  with  the  goods  of  his  an- 
cestor, but  if  any  particular  customs  help  him  ? 

The  other  maxims  and  customs  of  the  law  that  be  not  so 
openly  known  among  the  people  may  be  known  partly  by 
the  law  of  reason,  and  partly  by  the  books  of  the  laws  of 
England,  called  Years  and  Terms,  and  partly  by  divers 
records  remaining  in  the  king's  courts,  and  in  the  treasury, 
and  specially  by  a  book  called  the  jRcgistcr,^  and  also  by 
divers  statutes,  wherein  many  of  the  said  cus  oms  and  max- 
ims be  oft  recited,  as  to  a  diligent  searchei  will  evidently 
appear. 

Chap.  X. —  Of  the  fifth  ground  of  the  lazv  of  England. 

The  fifth  ground  of  the  law  of  England  standeth  in  divers 
■particular  customs,  used  in  divers  counties,  towns,  cities, 
and  lordships  in  this  realm  :  the  which  particular  customs, 
because  they  be  not  against  the  law  of  reason,  nor  the  law 
of  God,  though  they  be  against  the  said  general  customs  or 
maxims  of  the  law,  yet  nevertheless  they  stand  in  effect, 
and  be  taken  for  law  :  but  if  it  rise  in  question  in  the  king's 
courts,  whether  there  be  any  such  particular  custom  or  not, 
it  shall  be  tried  by  twelve  men,  and  not  by  the  judges,  ex- 
cept the  same  particular  custom  be  of  record  in  the  same 
court.  ||  Of  which  particular  customs  I  have  hereafter  noted 
some  lor  an  example. 

First,  there  is  a  custom  in  Kent  that  is  called  Gavelkind, 


*  Litt.,  sec  241 

tCo.  Litt.  351. 

X  Ante,  21 ;   post.  224;  post  225. 

;<  I'n  lace  to  Doug.  Rep.  10;   1  B.  C.  71. 

||  Noy's  Max.  18. 


Dialogue    I. — Chap,  ii 


35 


that  all  the  brethren  shall  inherit  together,  as  sisters  at  the 
common  law.* 

Also,  there  is  another  particular  custom  that  is  called 
Burgh- english,  where  the  younger  son  shall  inherit  before 
the  eldest;  and  that  custom  is  in  Nottingham. f 

Also,  there  is  a  custom  in  the  city  of  London,  that  free- 
men there  may,  by  their  testament  inrolled,  bequeath  their 
lands  that  they  be  seised  of  to  whom  they  will,  except  to 
mortmain  :  and  if  they  be  citizens  and  freemen,  that  they 
may  also  bequeath  their  lands  to  mortmain. \ 

Also,  in  Gavelkind,  though  the  father  be  hanged  the  son 
shall  inherit.  §  For  their  custom  is,  The  father  to  the  bough, 
the  son  to  the  -plough. 

Also,  in  some  countries  the  wife  shall  have  the  half  of 
the  husband's  land  in  the  name  of  her  dowry,  as  long  as 
she  liveth  sole.  j| 

And  in  some  country  the  husband  shall  have  the  half  of 
the  inheritance  of  his  wife,  though  he  have  no  issue  bv 
her.1" 

Also,  in  some  country  an  infant  when  he  is  of  the  age  of 
fifteen  years  may  make  a  feoffment,  and  the  feoffment 
good  :**  and  in  some  country,  when  he  can  mete  an  ell  of 
cloth. 

Chap.   XI. —  Of  the  sixth  ground  of  the  law  of  England. 

The  sixth  ground  of  the  law  of  England  standeth  in 
divers  statutes  made  bv  our  sovereign  lord  the  king  and  his 
progenitors,  and  by  the  lords  spiritual  and  temporal,  and 
the  commons  in   divers  parliaments,  in  such  cases  where 


*Post.  56;  Stat.  31   H.  S,  c.  3. 

fLitt,  sec.  165;   post.  56. 

%  1  Roll.  Abr.  556;  3  Cro.  347. 

§That  is,  if  the  father  is  hanged  for  felony;  for  if  he  is  attainted  of  trea- 
son, anil  hanged,  the  iands  are  forfeited  to  the  king.  Consideration  on 
Law  of  Forfeitures,  6j 

||  i  Cro.  1  _•  i. 

t  Co.  Litt.  30. 

**  1  B.  C.  78;   2  Bac.  Abr.  63S. 


^6  Doctor  and   Student. 

the  law  of  reason,  the  law  of  God,  customs,  maxims,  ne 
other  grounds  of  the  law  seemed  not  to  be  sufficient  to 
punish  evil  men  and  to  reward  good  men.*  And  I  re- 
member not  that  I  have  seen  any  other  grounds  of  the  law 
of  England,  but  only  these  that  I  have  before  remembered. 
Furthermore  it  appeareth  of  that  I  have  said  before,  that 
ofttimes  two  or  three  grounds  of  the  law  of  England  must 
be  joined  together,  or  that  the  plaintiff  can  open  and  de- 
clare his  right,  as  it  may  appear  by  this  example.  If  a 
man  enter  into  another  man's  land  by  force,  and  after  make 
feoffment  for  maintenance  to  defraud  the  plaintiff  from  his 
action  ;  in  this  case  it  appeareth  that  the  said  unlawful  entry 
is  prohibited  by  the  law  of  reason  :  but  the  plaintiff  shall 
recover  treble  damages,  j  that  is  by  reason  of  the  statute 
made  in  the  eighth  year  of  king  Henry  VI,  cap.  9.$  And 
that  the  damages  shall  be  cessed  by  twelve  men,§  that  is 
by  the  custom  of  the  realm.  And  so  in  this  case  three 
grounds  of  the  law  of  England  maintain  the  plaintiff's 
action. 

And  so  it  is  in  divers  other  cases  that  need  not  to  be  re- 
membered now.  And  thus  I  make  an  end  ior  this  time  to 
speak  any  farther  of  the  grounds  of  the  law  of  England. 

Doct.  I  thank  thee  for  the  great  pain  that  thou  hast  taken 
therein.  Nevertheless,  forasmuch  as  it  appeareth  that  thou 
hast  said  before  that  the  learned  men  of  the  law  of  Eng- 
land pretend  to  verify  that  the  law  of  England  will  nothing 
do,  ne  attempt  against  the  law  of  reason,  nor  the  law  of 
God,  I  pray  thee  answer  me  to  some  questions  grounded 
upon  the  law  of  England,  how,  as  thou  thinkest,  the  law 
may  stand  with  reason  or  conscience  in  them. 

Stud.  Put  the  case,  and  I  shall  make  answer  therein,  as 
well  as  I  can. 

*  Noy's  Max.  19. 

t  Co.  Litt.  257. 

%  See  this  statute  explained  and  enforced  by  31  Eliz.,  cap.  11,  and  21  Jac. 
1,  cap.  15. 

§  Upon  an  action  of  trespass,  or  an  assize  of  novel  disseisin,  which  is 
the  remedy  given  by  the  statute  to  recover  the  treble  damages,  and  likewise 
treble  costs.    Jenk.  Cent.  197. 


Dialogue   I. — Chap.  12.  37 


Chap.  XII. —  The  first  question  of  the  doctor,  of  the  law 
of  England  and  conscience. 

I  have  heard  say  that  if  a  man  that  is  bound  in  an  obli- 
gation pay  the  money,  but  he  taketh  no  acquittance,  or  if 
lie  take  one,  and  it  happeneth  him  to  leese  it,  that,  in  that 
case,  he  shall  be  compelled  by  the  laws  of  England  to  pay 
ihe  money  again.  And  how  may  it  be  said  then  that  that 
law  standeth  with  reason  and  conscience?  For  as  it  is 
grounded  upon  the  law  of  reason  that  debts  ought  of  right 
to  be  payed,  so  it  is  grounded  upon  the  law  of  reason  (as  it 
seemeth)  that  when  they  be  payed,  that  he  that  payed  them 
should  be  discharged. 

Stud.  First,  Thou  shalt  understand  that  it  is  not  the  law 
of  England  that  if  a  man  that  is  bound  in  an  obligation 
pay  the  money  without  acquittance,  or  if  he  take  acquit- 
tance and  leese  it,  that  therefore  the  law  determineth  that 
he  ought  of  right  to  pay  the  money  eftsoons,  for  that  law 
were  both  against  reason  and  conscience.  But  though  it 
is  so,  that  there  is  a  general  maxim  in  the  law  of  England 
that  in  an  action  of  debt  sued  upon  an  obligation  the  de- 
fendant shall  not  plead  that  he  oweth  not  the  money,  ne  can 
in  no  wise  discharge  himself  in  that  action,  but  he  have 
acquittance,  or  some  other  writing  sufficient  in  the  law,  or 
some  other  thing  like,  witnessing  that  he  hath  paid  the 
money  ;*  that  is  ordained  by  the  law  to  avoid  a  great  in- 
convenience that  else  might  happen  to  come  to  man}'  peo- 
ple ;  that  is  to  say,  that  every  man  by  a  nude  parole  and 
by  a  bare  averment  should  avoid  an  obligation. \  Where- 
fore, to  avoid  that  inconvenience,  the  law  hath  ordained 
that  as  the  defendant  is  charged  by  a  sufficient  writing,  that 
so  he  must  be  discharged  by  sufficient  writing  or  by  some 
other  thing  of  as  high  authority  as  the  obligation  is.  And 
though  it  may  follow  thereupon  that,  in  some  particular 
case,  a  man  by  occasion  of  that  general  maxim  may  be 

*  Finch  .  \i. 

t Fitzgib.  213;   Finch.  It;   Noy*s  Max.  4. 


38  Doctor  and   Student. 

compelled  to  pay  the  money  again  that  he  payed  before  ; 
yet,  nevertheless,  no  default  can  be  thereof  assigned  in  the 
law.  For  like  as  makers  of  law  take  heed  to  such  things 
as  may  oft  fall,  and  do  much  hurt  among  the  people,  rather 
than  to  particular  cases  :  so  in  likewise  the  general  grounds 
of  the-lavv  of  England  heed  more  what  is  good  for  many 
than  what  is  good  for  one  singular  person  only.  And  be- 
cause it  should  be  a  hurt  to  many,  if  an  obligation  should 
be  so  lightly  avoided  by  word  ;  therefore  the  law  especially 
preventeth  that  hurt  under  such  manner  as  before  appear- 
eth ;  and  yet  intendeth  not,  nor  commandeth  not,  that  the 
money  of  right  ought  to  be  paid  again,  but  setteth  a  general 
rule,  which  is  good  and  necessary  to  all  the  people,  and 
that  every  man  may  well  keep,  without  it  be  through  his 
own  default.  And  if  such  default  happen  in  any  person, 
whereby  he  is  without  remedy  at  the  common  law,  yet  he 
may  be  holpen  by  a  subpoena;  and  so  he  may  in  many 
other  cases  where  conscience  serveth  for  him,  that  were  too 
long  to  rehearse  now.* 

Doct.  But  I  pray  thee  shew  me  under  what  manner  a 
man  may  be  holpen  by  conscience  ;  and  whether  he  shall 
be  holpen  in  the  same  court,  or  in  another. 

Stud.  Because  it  cannot  be  well  declared  where  a  man 
shall  be  holpen  by  conscience,  and  where  not,  but  it  be 
first  known  what  conscience  is,  therefore,  because  it  per- 
taineth  to  thee  most  properly  to  treat  of  the  nature  and 
quality  of  conscience,  therefore  I  pray  thee  that  thou  wilt 
make  me  some  brief  declaration  of  the  nature  and  quality 
of  conscience,  and  then  I  shall  answer  to  thy  question  as 
well  as  I  can. 

Doct.  I  will  with  good-will  do  as  thou  say  est :  and  to 
the  intent  that  thou  mayest  the  better  understand  that  I 
shall  say  of  conscience,  I  shall  first  shew  thee  what  sin- 
dercsis  is,  and  then  what  reason  is,  and  then  what  con- 
science is ;  and  how  these  three  differ  among  themselves, 
I  shall  somewhat  touch. 

*  1  Chanc.  Cases,  78;  2  Comyn's  Digest,  323. 


Dialogue   I. — Chap.   13.  39 

Chap.  XIII. —  What  sinderesis  is. 

Sinderesis  is  a  natural  power  of  the  soul,  set  in  the  highest 
part  thereof,  moving  and  stirring  it  to  good  and  abhorring 
evil.  And  therefore  sinderesis  never  sinneth  nor  erreth. 
And  this  sinderesis  our  Lord  put  in  man,  to  the  intent  that 
the  order  of  things  should  be  observed.  For,  after  St. 
Dionyse,  the  wisdom  of  God  joined  the  beginning  of 
the  second  things  to  the  last  of  the  first  things  :  for  an^el 
is  of  a  nature  to  understand  without  searching  of  reason, 
and  to  that  nature  man  is  joined  by  sinderesis,  the  which 
sinderesis  may  not  wholly  be  extincted  neither  in  man  ne 
yet  in  damned  souls.  But  nevertheless,  as  to  the  use  and 
exercise  thereof,  it  may  be  let  for  a  time,  either  through 
the  darkness  of  ignorance,  or  for  undiscreet  delectation, 
or  for  the  hardness  of  obstinacy.  First  by  the  dark- 
ness of  ignorance,  sinderesis  may  be  let  that  it  shall 
not  murmur  against  evil,  because  he  believeth  evil  to 
be  good,  as  it  is  in  heretics,  the  which,  when  thev  die 
for  the  wickedness  of  their  error,  believe  thev  die  for 
the  very  truth  of  their  faith.  And  by  undiscreet  delecta- 
tion sinderesis  is  sometime  so  overlaid,  that  remorse  or 
grudge  of  conscience  for  that  time  can  have  no  place. 
For  the  hardness  of  obstinacy  sinderesis  is  also  let,  that  it 
may  not  stir  to  goodness,  as  it  is  in  damned  souls,  that  be 
so  obstinate  in  evil,  that  the}r  ma}-  never  be  inclined  to  good. 
And  though  sinderesis  may  be  said  to  that  point  extinct  in 
damned  souls,  yet  it  may  not  be  said  that  it  is  fully  extinct 
to  all  intents.  For  they  alway  murmur  against  the  evil  of 
the  pain  that  they  suffer  for  sin,  and  so  it  may  not  be  said 
that  it  is  universally,  and  to  all  intents,  and  to  all  times  ex- 
tinct. And  this  sinderesis  is  the  be<nnnin<>-  of  all  things 
that  may  be  learned  by  speculation  or  stud}',  and  ministreth 
the  general  grounds  and  principles  thereof;  and  also  of  all 
things  that  are  to  be  done  by  man.  An  example  oi  such 
things  as  may  be  learned  by  speculation  appeareth  thus  :  sin- 
deresis saith  that  every  whole  thing  is  more  than  any  one 
part  of  the  same  thing,  and  that  is  a  sure  ground  that  never 


4<3  Doctor  and  Student. 

faileth.  And  an  example  of  things  that  are  to  be  done,  or 
not  to  be  done  :  as  where  sinderesis  saith  no  evil  is  to  be 
done,  but  that  goodness  is  to  be  done  and  followed,  and 
evil  to  be  fled,  and  such  other. 

And  therefore  sinderesis  is  called  by  some  men  the  law 
of  reason,  for  it  ministreth  the  principles  of  the  law  of  rea- 
son, the  which  be  in  every  man  by  nature,  in  that  he  is  a 
reasonable  creature. 

Chap.  XIV.—  Of  reason. 

When  the  first  man  Adam  was  created,  he  received  of 
God  a  double  eye, that  is  to  say,  an  outward  eye,  whereby  he 
might  see  visible  things,  and  know  his  bodily  enemies,  and 
eschew  them  :  and  an  inward  eye,  that  is,  the  eye  of  rea- 
son, whereby  he  might  see  his  spiritual  enemies  that  light 
against  his  soul,  and  beware  of  them.  And  amon<rall  gifts 
that  God  gave  to  men,  this  gift  of  reason  is  the  most  no- 
blest, for  thereby  man  precelleth  all  beasts,  and  is  made 
like  to  the  dignity  of  angels,  discerning  truth  from  falsehood, 
and  evil  from  <rood  ;  wherefore  he  goeth  far  from  the  effect 
that  he  was  made  to,  when  he  taketh  not  heed  to  the  truth, 
or  when  he  preferreth  evil  before  good. 

And  therefore,  after  doctors,  reason  is  the  power  of  the 
soul  that  discerneth  between  good  and  evil,  and  between 
good  and  better,  comparing  the  one  with  the  other  :  the 
which  also  sheweth  virtues,  loveth  good,  and  flieth  vices. 
And  reason  is  called  righteous  and  good,  for  it  is  conform- 
able to  the  will  of  God  ;  and  that  is  the  first  thing,  and  the 
first  rule  that  all  things  must  be  ruled  by.  And  reason  that 
is  not  righteous  nor  strait,  but  that  is  said  culpable,  is  either 
because  she  is  deceived  with  an  error  that  might  be  over- 
come, or  else  through  her  pride  or  slothfulness  she  enquireth 
not  for  knowledge  of  the  truth  that  ought  to  be  enquired. 
Also  reason  is  divided  into  two  parts,  that  is  to  say,  into  the 
higher  part,  and  into  the  lower  part. 

The  higher  part  hideth  heavenly  things  and  eternal,  and 
reasoneth  by  heavenly  laws  or  by  heavenly  reason  what  is 


Dialogue   I. — Chap.  15.  41 

to  be  done,  and  what  is  not  to  be  done,  and  what  things 
God  commandeth,  and  what  he  prohibiteth.  And  this 
higher  part  of  reason  hath  no  regard  to  transitory  things 
or  temporal  things,  but  that  sometime,  as  it  were  bv  manner 
of  counsel,  she  bringeth  forth  heavenly  reasons  to  order 
well  temporal  things.  The  lower  part  of  reason  worketh 
most  to  govern  well  temporal  tilings,  and  she  groundeth 
her  reasons  much  upon  laws  of  man,  and  upon  reason  of 
man,  whereby  she  concludeth  that  that  is  to  be  done  that  is 
honest  and  expedient  to  the  commonwealth,  or  not  to  be 
done,  that  is  not  expedient  to  the  commonwealth.  And  so 
that  reason  whereby  I  know  God,  and  such  things  as  per- 
tain to  God,  belongeth  to  the  highest  part  of  reason  ;  and 
the  reason  whereby  I  know  creatures  belongeth  to  the 
lower  part  of  reason.  And  though  these  two  parts,  that  is 
to  say,  the  higher  part  and  the  lower  part,  be  one  in  deed 
and  essence,  yet  they  differ  by  reason  of  their  working,  and 
of  their  office  ;  as  it  is  of  one  self  eye,  that  sometime  look- 
eth  upward,  and  sometime  downward. 

Chai\  XV. — Of  conscience. 

This  word  conscience,  which  in  Latin  is  called  consci- 
oitia,  is  compounded  of  this  proposition  cnin,  that  is  to 
say  in  English,  with;  and  of  this  noun  scientia,  that  is  to 
say  in' English,  knowledge:  and  so  conscience  is  as  much 
to  say  knowledge  of  one  thing  with  another  thing  :  and 
conscience  so  taken,  is  nothing  else  but  an  applying  of  any 
science  or  knowledge  to  some  particular  act  of  man.  And 
so  conscience  may  sometime  err,  and  sometime  not  err. 
And  of  conscience  thus  taken,,  doctors  make  man}'  descrip- 
tions. Whereof  one  doctor  saith,  that  conscience  is  the 
law  of  our  understanding.  Another,  that  conscience  is  an 
habit  of  the  mind  discerning  between  good  and  evil.  An- 
other, that  conscience  is  the  judgment  of  reason  judging 
on  the  particular  acts  of  man.  All  which  sayings  agree 
in  one  effect,  that  is  to  say,  that  conscience  is  an  actual  ap- 
plying  of  any  cunning  ol  knowledge  to  such  things  as  are 


\i  Doctor  and  Student. 

to  be  done:  whereupon  it  followeth,  that  upon  the  most 
perfect  knowledge  of  any  law  or  cunning,  and  of  the  most 
perfect  and  most  true  applying  of  the  same  to  any  particu- 
lar act  of  man,  followeth  the  most  perfect,  the  most  pure, 
and  the  most  best  conscience.  And  if  there  be  default  in 
knowing  of  the  truth  of  such  a  law,  or  in  the  applying  of 
the  same  to  particular  acts,  then  thereupon  followeth  an 
error  or  default  in  conscience.  As  it  may  appear  by  this 
example  :  Sinderesis  ministreth  an  universal  principle  that 
never  erreth,  that  is  to  say,  that  an  unlawful  thing  is  not  to 
be  done.  And  then  it  might  be  taken  by  some  men,  that 
every  oath  is  unlawful,  because  the  Lord  saith,  Mat.  v., 
Yc  shall  in  no  wise  szvcar ;  and  yet  he  that  by  reason  of  the 
said  words  will  hold  that  it  is  not  lawful  in  no  case  to 
swear,  erreth  in  conscience  ;  for  he  hath  not  the  perfect 
knowledge  and  understanding  of  the  truth  of  the  said  gos- 
pel, nor  he  reduceth  not  the  saying  of  the  scripture  to  other 
scriptures,  in  which  it  is  granted  that  in  some  case  an  oath 
may  be  lawful.  And  "the  cause  why  conscience  may  so  err 
in  the  said  case,  and  in  other  like,  is  because  conscience  is 
formed  of  a  certain  proposition  or  question,  grounded  par- 
ticularly upon  universal  rules  ordained  for  such  things  as 
are  to  be  done.  And  because  a  particular  proposition  is 
not  known  to  himself,  but  must  appear  and  be  searched  by 
a  diligent  search  of  reason,  therefore  in  search  and  in  the 
conscience  that  should  be  formed  thereupon  may  happen 
to  be  error,  and  thereupon  it  is  said  that  there  is  error  in 
conscience  :  which  error  cometh  either  because  he  doth  not 
assent  to  that  he  ought  to  assent  unto,  or  else  because  his 
reason  whereby  he  doth  refer  one  thing  to  another  is  de- 
ceived. For  farther  declaration  whereof  it  is  to  under- 
stand, that  error  in  conscience  cometh  seven  manner  ot 
ways.  First,  through  ignorance  ;  and  that  is,  when  man 
knoweth  not  what  he  ought  to  do  :  and  then  he  ought  to 
ask  counsel  of  them  that  he  thinks  most  expert  in  that 
science  whereupon  his  doubt  riseth.  And  if  he  can  have 
no  counsel,  then  he  must  wholly  commit  him  to  God,  and 
he  of  his  goodness  will  so  order  him,  that  he  will  save  him 


Dialogue   I. —  Chap.    15.  43 

from  offence.  The  second  is  through  negligence  ;  as  when 
a  man  is  negligent  to  search  his  own  conscience,  or  to  en- 
quire the  truth  of  other.  The  third  is  through  pride  ;  as 
when  he  will  not  meeken  himself,  ne  believe  them  that  be 
better  and  wiser  than  he  is.  The  fourth  is  through  sinini- 
larity  ;  as  when  a  man  followeth  his  own  wit,  and  will  not 
conform  himself  to  other,  nor  follow  the  good  common  ways 
of  men.  The  filth  is  through  an  inordinate  affection  to 
himself,  whereby  he  maketh  conscience  to  follow  his  desire, 
and  so  he  causeth  her  to  <jo  out  of  her  right  course.  The 
sixth  is  through  pusillanimity,  whereby  some  person  dread- 
eth  ofttimes  such  things  as  of  reason  he  ought  not  to  dread. 
The  seventh  is  through  perplexity  ;  and  this  is  when  a  man 
believeth  himself  to  be  so  set  betwixt  two  sins,  that  he 
thinketh  it  impossible  but  that  he  shall  fall  into  the  one  : 
but  a  man  can  never  be  so  perplexed  indeed,  but  through 
an  error  in  conscience  ;  and  if  he  will  put  away  that  error, 
he  shall  be  delivered.  Therefore  I  pray  thee  that  thou  wilt 
always  have  a  good  conscience  ;  and  if  thou  have  so,  thou 
shalt  always  be  merry  ;  and  if  thine  own  heart  reprove  thee 
not,  thou  shalt  always  have  inward  peace.  The  gladness 
of  right  wise  men,  is  of  God,  and  in  God,  and  their  joy  is 
always  in  truth  and  goodness.  There  be  many  diversities 
of  conscience,  but  there  is  none  better  than  that  whereby  a 
man  truly  knoweth  himself.  Many  men  know  many  great 
and  high  cunning  things,  and  yet  know  not  themselves  : 
and  truly  he  that  knoweth  not  himself,  knoweth  nothing 
well.  Also  he  hath  a  good  and  clean  conscience,  that  hath 
purity  and  cleanness  in  his  heart,  truth  in  his  word,  and 
right  wiseness  in  his  deed.  And  as  a  light  is  set  in  a  lan- 
tern, that  all  that  is  in  the  house  may  be  seen  thereby  ;  so 
Almighty  God  hath  set  conscience  in  the  midst  of  every 
reasonable  soul,  as  a  light  whereby  he  may  discern  and 
know  what  he  ought  to  do,  and  what  he  ought  not  to  do. 
Therefore  forasmuch  as  it  behoveth  thee  to  be  occupied  in 
such  things  as  pertain  to  the  law  ;  it  is  necessary  that  thou 
ever  hold  a  pure  and  clean  conscience,  specially  in  such 
things  as  concern   restitution  :   for  the  sin   is  not  forgiven, 


44  Doctor  and  Student. 


but  if  the  thing  that  is  wrongfully  taken  be  restored.  And 
I  counsel  thee  also  that  thou  love  that  is  good,  and  fly  that 
is  evil :  and  that  thou  do  to  another,  as  thou  wouldest 
should  be  done  to  thee,  and  that  thou  do  nothing  to  other, 
that  thou  wouldest  not  should  be  done  to  thee,  that  thou  do 
nothing  against  truth,  that  thou  live  peaceably  with  thy 
neighbour,  and  that  thou  do  justice  to  every  man  as  much 
as  in  thee  is  :  and  also  that  in  every  general  rule  of  the 
law  thou  do  observe  and  keep  equity.  And  if  thou  do 
thus,  I  trust  the  light  of  the  lantern,  that  is,  thy  conscience, 
shall  never  be  extincted. 

Stud.  But,  I  pray  thee,  shew  me  what  is  that  equity  that 
thou  hast  spoken  of  before,  and  that  thou  wouldest  that  I 
should  keep. 

Doct.   I  will  with  good-will  shew  thee  somewhat  thereof. 

Chap.  XVI.      What  is  equity. 

Equity  is  a  right  wiseness  that  considereth  all  the  par- 
ticular circumstances  of  the  deed,  the  which  also  is  tem- 
pered with  the  sweetness  of  mercy.  And  such  an  equity 
must  always  be  observed  in  every  law  of  man,  and  in  every 
general  rule  thereof:  and  that  knew  he  well  that  said  thus, 
Laws  covet  to  be  ruled  by  equity.  And  the  wise  man  saith, 
Be  not  overmuch  right  -wise;  for  the  extreme  right  -wise- 
ness is  extreme  wrong:  as  who  saith,  If  thou  take  all  that 
the  words  of  the  law  giveth  thee  thou  shalt  sometime  do 
against  the  law.  And  for  the  plainer  declaration  what 
equity  is,  thou  shalt  understand,  that  sith  the  deeds  and 
acts  of  men,  for  which  laws  have  been  ordained,  happen  in 
divers  manners  infinitely,  it  is  not  possible  to  make  any 
general  rule  of  the  law,  but  that  it  shall  fail  in  some  case  : 
and  therefore  makers  of  law  take  heed  to  such  things  as 
may  often  come,  and  not  to  every  particular  case,  for  they 
could  not  though  they  would.  And  therefore,  to  follow  the 
words  of  the  law  were  in  some  case  both  against  justice  and 
the  commonwealth.  Wherefore  in  some  cases  it  is  neces- 
sary to  love  the  words  of  the  law,  and  to  follow  that  reason 


Dialogue   I. — Chap.  16.  45 


and  justice  requireth,  and  to  that  intent  equity  is  ordained; 
that  is  to  say,  to  temper  and  mitigate  the  rigour  of  the  law. 

And  it  is  called  also  by  some  men  cficikcia ;  the  which  is 
no  other  thing  but  an  exception  of  the  law  of  God,  or  the 
law  of  reason,  from  the  general  rules  of  the  law  of  men, 
when  they  by  reason  of  their  generality,  would  in  any  par- 
ticular case  judge  against  the  law  of  God  or  the  law  of 
reason  :  the  which  exception  is  secretly  understood  in  every 
general  rule  of  every  positive  law.  And  so  it  appeareth, 
that  equity  taketh  not  away  the  very  right,  but  only  that 
that  seemeth  to  be  right  by  the  general  words  of  the  law. 
Nor  it  is  not  ordained  against  the  cruelness  of  the  law,  for 
the  law  in  such  case  generally  taken  is  good  in  himself; 
but  equity  followeth  the  law  in  all  particular  cases  where 
right  and  justice  requireth,  notwithstanding  the  general  rule 
of  the  law  be  to  the  contrary.  Wherefore  it  appeareth.,  that 
if  any  law  were  made  by  man  without  any  such  exception 
expressed  or  implied,  it  were  manifestly  unreasonable,  and 
were  not  to  be  suffered  :  for  such  causes  might  come,  that 
he  that  would  observe  the  law  should  break  both  the  law 
of  God  and  the  law  of  reason.  As  if  a  man  make  a  vow 
that  he  will  never  eat  white-meat,  and  after  it  happeneth 
him  to  come  there  where  he  can  get  no  other  meat :  in  this 
case  it  behoveth  him  to  break  his  avow,  for  the  particular 
case  is  excepted  secretly  from  his  general  avow  by  his 
equity  or  cpici/ccia,  as  it  is  said  before.  Also  if  a  law  were 
made  in  a  city,  that  no  man  under  the  pain  of  death  should 
open  the  gates  of  the  city  before  the  sun-rising:  vet  if  the 
citizens  before  that  hour  Hying  from  their  enemies,  come  to 
the  gates  of  the  city,  and  one  for  saving  of  the  citizens 
openeth  the  gates  before  the  hour  appointed  by  the  law,  he 
oflendeth  not  the  law,  for  that  case  is  excepted  from  the 
said  general  law  by  equity,  as  is  said  before.  And  so  it 
appeareth  that  equity  rather  followeth  the  intent  of  the  law, 
than  the  words  of  the  law.  And  I  suppose  that  there  be  in 
like  wise  some  like  equities  grounded  on  the  general  rules 
ol  the  law  of  the  realm. 

Stud.  Yea   verily ;    whereof  one    is   this.     There    is    a 


46  Doctor  and   Student. 

general  prohibition  in  the  laws  of  England,  that  it  shall 
not  be  lawful  to  any  man  to  enter  into  the  freehold  of  an- 
other without  authority  of  the  owner  or  the  law  :  but  yet  it 
is  excepted  from  the  said  prohibition  by  the  law  of  reason, 
that  if  a  man  drive  beasts  by  the  highway,  and  the  beasts 
happen  to  escape  into  the  corn  of  his  neighbour,  and  he, 
to  bring  out  his  beasts,  that  they  should  do  no  hurt,  goeth 
into  the  ground,  and  setteth  out  his  beasts,  there  he  shall 
justify  that  entry  into  the  ground  by  the  law.*  Also  not- 
withstanding the  statute  of  Edw.  3,  made  the  14th  year  of 
his  reign,  whereby  it  is  ordained,  that  no  man,  upon  pain  of 
imprisonment,  should  give  any  alms  to  any  valiant  beggar, 
that  is  well  able  to  labour  ;f  yet  if  a  man  meet  with  a  val- 
iant beggar  in  so  cold  a  weather,  and  so  light  apparel,  that 
if  he  have  no  clothes,  he  shall  not  be  able  to  come  to  any 
town  for  succour,  but  is  likely  rather  to  die  by  the  way, 
and  he  therefore  giveth  him  apparel  to  save  his  life,  he  shall 
be  excused  by  the  said  statute,  by  such  an  exception  of  the 
law  of  reason  as  I  have  spoken  of. 

Doct.  I  know  well  that,  as  thou  sayest,  he  shall  be  ex- 
cepted of  the  said  statute  by  conscience,  and  over  that,  that 
he  shall  have  great  reward  of  God  for  his  good  deeds  :  but  I 
would  wit  whether  the  party  shall  be  so  discharged  in  the 
Common  law  by  such  an  exception  of  the  law  of  reason, 
or  not?  For  though  ignorance  invincible  of  a  statute  ex- 
cuse the  party  against  God,  yet  (as  I  have  heard)  it  ex- 
cuseth  not  in  the  laws  of  the  realm,  ne  yet  Chancery ,  as 
some  say,  although  the  case  be  so  that  the  party  to  whom 
the  forfeiture  is  given  may  not  with  conscience  leave  it. 

Stud.  Verily,  by  thy  question  thou  hast  put  me  in  a  great 
doubt ;  wherefore  I  pray  thee  give  me  a  respite  therein  to 
make  thee  an  answer  :  but,  as  I  suppose  for  the  time,  (how- 
beit  I  will  not  fully  affirm  it  to  be  as  I  say)  it  should  seem 
that  he  should  well  plead  it  for  his  discharge  at  the  Common 
law,  because  it  shall  be  taken  that  it  was  the  intent  of  the 

*  Viner's  Abr.,  title  Trespass,  466. 

t  Repealed  by  1  Ed.  6,  c.  13,  and  21  Jac,  28;  ante,  15. 


Dialogue   I. — Chap.    17.  47 


makers  of  the  statute  to  except  such  cases.*  And  the 
judges  may  many  times  judge  after  the  mind  of  the  makers 

as  far  as  the  letter  may  suffer,  and  so  it  seemeth  they  may 
in  this  case.  And  divers  other  exceptions  there  be  also 
from  other  general  grounds  of  the  law  of  the  realm  by 
such  equity  as  thou  hast  remembered  before,  that  were  too 
long  to  rehearse  now. 

Doct.  But  yet  I  pray  thee  shew  me  shortly  somewhat 
more  of  the  mind,  under  what  manner  a  man  may  be 
holpen  in  this  realm  by  such  equity-. 

Stud.  I  will  with  good-will  shew  thee  somewhat  therein. 

Chap.  XVII. — /;/  what  manner  a  man  shall  be  holpen  by 
equity  in  the  lazes  of  England. 

First,  It  is  to  be  understood,  there  be  in  many  cases  divers 
exceptions  from  the  general  grounds  of  the  law  of  the 
realm  by  other  reasonable  grounds  of  the  same  law, 
whereby  a  man  shall  be  holpen  in  the  common  law.  As 
it  is  of  this  general  ground,  that  it  is  not  lawful  for  any  man 
to  enter  upon  a  descent ;  yet  the  reasonableness  of  the  law 
excepteth  from  that  ground  an  infant  that  hath  right,  and 
hath  suffered  such  a  descent,  and  him  also  that  maketh 
continual  claim,  and  suffereth  them  to  enter,  notwithstand- 
ing the  descent.!  And  of  that  exceDtion  thev  shall  have 
advantage  in  the  Common  law.  And  so  it  is  likewise  of 
divers  statutes;  as  of  the  statute  whereby  it  is  prohibited 
that  certain  particular  tenants  shall  do  no  waste,  yet  it  a 
lease  for  term  of  years  be  made  to  an  infant  that  is  within 
years  of  discretion,  as  of  the  age  of  five  or  six  years,  and 
a  stranger  do  waste,  in  this  case  this  infant  shall  not  be 
punished  for  the  waste,  for  he  is  excepted  and  excused  by 
the  law  of  reason.^     And  a  woman   covert,  to  whom   such 

*Noy's  Max.  19. 

■f  Litt.,  *ec  402,  414;  Noy's  Max.  7. 

X  But  in  2  Inst.  303,  it  is  said,  that  if  an  infant  is  tenant  by  the  curtesy 
or  lessee  for  life  or  years,  he  shall  answer  for  waste  done  by  a  stranger, 
and  have  his  remedy  over.      See  likewise  1  Inst.  54. 


48  Doctor  and  Student. 

a  lease  is  made  after  the  coverture,  shall  be  also  discharged 
of  waste  after  her  husband's  death,  by  a  reasonable  maxim 
and  custom  of  the  realm.*  And  also  for1  reparations  to  be 
made  upon  the  same  ground,  it  is  lawful  for  such  particu-. 
lar  tenants  to  cut  down  trees  upon  the  same  ground  to  make 
reparations.!  But  the  cause  there,  as  I  suppose,  is,  for 
that  the  mind  of  the  makers  of  the  said  statute  shall  be 
taken  to  be,  that  that  case  should  be  excepted.  And  in  all 
these  cases  the  parties  shall  be  holpen  in  the  same  court, 
and  by  the  common  law.  And  thus  it  appeareth,  that 
sometime  a  man  may  be  excepted  from  the  rigor  of  a  maxim 
of  the  law  by  another  maxim  of  the  law  ;  and  sometime 
from  the  rigor  of  a  statute  by  the  law  of  reason,  and  some- 
time by  the  intent  of  the  makers  of  the  statute. |  But  yet 
it  is  to  be  understood,  that  most  commonly  where  any  thing- 
is  excepted  from  the  general  customs  or  maxims  of  the  laws 
of  the  realm  by  the  law  of  reason,  the  party  must  have  his 
remedy  by  a  writ  that  is  called  subpoena,  it  a  subpoena  lie 
in  the  case.§  But  where  a  stibpcoia  lieth,  and  where  not, 
it  is  not  our  intent  to  treat  of  at  this  time.  And  in  some 
cases  there  is  no  remedy  for  such  an  equity  by  way  of  com 
pulsion,  but  all  remedy  therein  must  be  committed  to  the 
conscience  of  the  party. 

Doct.  But  in  case  where  a  subpoena  lieth,  to  whom  shall 
it  be  directed,  whether  to  the  judge  or  the  party? 

Stud.  It  shall  never  be  directed  to  the  judge,  but  to  the 
party  plaintiff,  or  to  his  attorney  ;  and  thereupon  an  injunc- 
tion commanding  them  by  the  same,  under  a  certain  pain 
therein  to  be  contained  that  he  proceed  no  farther  at  the 
common  law  till  it  be  determined  in  the  king's  chanccrw 
whether  the  plaintiff  had  title  in   conscience  to  recover,  or 

*This  doctrine  is  denied  in  the  authorities  mentioned  in  the  precedin  ; 
note,  and  it  is  there  laid  down,  that  the  privilege  of  coverture  shall  not 
prevail  in  this  case  against  the  wrong  and  disherison  done  to  him  that  has 
the  inheritance,  if  the  wife  agrees  to  the  estate,  after  the  death  of  her  hus- 
band, since  she  has  a  remedy  over,  and  this  seems  to  be  the  better  law. 

t  Co.  Litt.  53. 

J4l3ac  Abr.  649;   Noy's  Max.  19. 

§  1  Ilarr.  Chan.  Prac.  5. 


Dialogue    I. — Chap.   17.  49 


not:  and  when  the  plaintiff,  by  reason  of  such  an  injunc- 
tion, ceaseth  to  ask  any  farther  process,  the  judges  will  in 
like  wise  cease  to  make  any  farther  process  in  that  behalf.* 

Doct.  Is  there  any  mention  made  in  the  law  of  England 
of  any  such  equities? 

Stud.  Of  this  term  equity,  to  the  intent  that  is  spoken  of 
here,  there  is  no  mention  made  in  the  law  of  England  :  but 
of  an  equity  derived  upon  certain  statutes  mention  is  made 
many  times,  and  often  in  the  law  of  England  ;f  but  that 
equity  is  all  of  another  effect  than  this.  But  of  the  effect 
of  this  equity  that  we  now  speak  of,  mention  is  made  many 
times  :  for  it  is  ofttimes  argued  in  the  law  of  England, 
where  a  subpoena  lieth,  and  where  not,  and  daily  bills  be 
made  by  men  learned  in  the  law  of  this  realm  to  have  sub- 
poenas. And  it  is  not  prohibited  by  the  law,  but  that  they 
may  well  do  it,  so  that  they  make  them  not  but  in  case 
where  they  ought  to  be  made,  and  not  for  vexation  of  the 
party,  but  according  to  the  truth  of  the  matter.  And  the 
law  will  in  many  cases,  that  there  shall  be  such  remedy  in 
the  chancery  upon  divers  things  grounded  upon  such  equi- 
ties, and  then  the  lord  chancellor  must  order  his  conscience 
after  the  rules  and  grounds  of  the  law  of  the  realm  ;  inso- 
much that  it  had  not  been  inconvenient  to  have  assigned 
such  remedy  in  the  chancery  upon  such  equities  for  the 
seventh  ground  of  the  law  of  England.  But  forasmuch  as 
no  record  remaineth  in  the  king's  court  of  no  such  bill,  ne 
of  the  writ  of  subpoena  or  injunction  that  is  used  thereupon  ; 
therefore  it  is  not  set  as  for  a  special  ground  of  the  law, 
but  as  a  thing  that  is  suffered  by  the  law. 

Doct.  Then  sith  the  parties  ought  ot  right  in  many  cases 
to  be  holpen  in  the  chancery  upon  such  equities  ;  it  seemeth 
that  if  it  were  ordained  by  statute,  that  there  should  be  no 
remedy  upon  such  equities  in  the  ehaueerw  nor  in  none 
Other  place,  but  that  every  matter  should  be  ordained  only 

*  1  Ilarr.  Chan.  Prat:.  :i:,  ^13. 
t  4  New  Abr.  649. 

4 


50  Doctor   and  Student. 

by  the  rules  and  grounds  of  the  common  law,  that  the 
statute  were  against  right  and  conscience. 

Stud.  I  think  the  same  :  but  I  suppose  there  is  no  such 
statute. 

Doct.  There  is  a  statute  of  that  effect,  as  I  have  heard 
say,  wherein  I  would  gladly  hear  thy  opinion. 

Stud.  Shew  me  that  statute,  and  I  shall  with  good-will 
say  as  me  thinketh  therein. 

Chap.  XVIII. —  Whether  the  statute  hereafter  rehearsed 
by  the  doctor  be  against  conscience,  or  not. 

There  is  a  statute  made  the  fourth  year  of  king  Henry 
IV,  cap.  22,  whereby  it  is  enacted,  That  judgment  given 
by  the  king's  courts  shall  not  be  examined  in  the  chancery, 
parliament,  nor  elsewhere  ;  by  which  statute  it  appeareth, 
that  if  any  judgment  be  given  in  the  king's  courts  against 
an  equity,  or  against  any  matter  of  conscience,  that  there 
can  be  had  no  remedy  by  that  equity,  for  the  judgment  can- 
not be  reformed  without  examination,  and  the  examination 
is  by  the  said  statute  prohibited  :  wherefore  it  seemeth  that 
the  said  statute  is  against  conscience.  What  is  thine 
opinion  therein? 

Stud.  If  judgment  given  in  the  king's  courts  should  be 
examined  in  the  chancery  before  the  king's  council,  or  any 
other  place,  the  plaintiffs  or  demandants  should  seldom 
come  to  the  effect  of  their  suit,  ne  the  law  should  never 
have  end.  And  therefore  to  eschew  that  inconvenience 
that  statute  was  made.  And  though  peradventure  by  rea- 
son of  that  statute  some  singular  person  may  happen  to 
have  loss;  nevertheless  the  said  statute  is  very  necessary, 
to  eschew  many  great  vexations  and  unjust  expences  that 
would  else  come  to  many  plaintiffs  that  have  right  wisely 
recovered  in  the  king's  courts.  And  it  is  much  more  pro- 
vided for  in  the  law  of  England,  that  hurt  nor  damages 
should  not  come  to  many,  than  only  to  one.      And  also  the 


Dialogue   I. — Chap.    18. 


5* 


said  statute  doth  not  prohibit  equity,*  but  it  prohibiteth  only 
the  examination  of  the  judgment,  for  the  eschewing  of  the 
inconvenience  before  rehearsed. f  And  it  seemeth  that  the 
said  statute  standeth  with  good  conscience.  And  in  many 
other  cases  where  a  man  doth  wrong,  yet  he  shall  not  be 
compelled  by  way  of  compulsion  to  relorm  it;  for  many 
times  it  must  be  left  to  the  conscience  of  the  party,  whether 
he  shall  redress  it  or  not.  And  in  such  case  he  is  in  con- 
science as  well  bound  to  redress  it,  if  he  will  save  his  soul, 
as  he  were  if  he  were  compellable  thereto  by  the  law  ;  as 
it  may  appear  in  divers  cases,  that  may  be  put  upon  the 
same  ground. 

Doct.  I  pray  thee  put  some  of  these  cases  for  an  ex- 
ample. 

Stud.  If  the  defendant  wage  his  law  in  an  action  of  debt 
brought  upon  a  true  debt,  the  plaintiff  hath  no  means  to 
come  to  his  debt  by  way  of  compulsion,  neither  by  subpoena, 
nor  otherwise  ;  and  yet  the  defendant  is  bound  in  conscience 
to  pay  him.  Also  if  the  grand  jury  in  attaint*  affirm  a 
false  verdict  given  by  the  petty  jury,  there  is  no  farther 
remedy  but  the  conscience  of  the  party.  Also  where  there 
can  be  had  no  sufficient  proof,  there  can  be  no  remedy  in 
the  chancery,  no  more  than  there  ma}'  be  in  the  spiritual 
court.  And  because  thou  hast  given  an  occasion  to  speak 
of  conscience,  I  would  gladly  hear  thy  opinion,  where  con- 
science shall  be  ruled  after  the  law,  and  where  the  law 
shall  be  ruled  after  conscience. 


That  is.  it  does  not  extend  to  hinder  .the  chancery  from  administering 
relief  in  cases  where  judgments  at  common  law  are  obtained  through  fraud 
and  false  suggestions-  That  court,  notwithstanding  the  statute,  may  pre- 
vent such  judgments  being  put  into  execution.  3  P.  Wins.  14S.  T  i-  a 
power  which  seems  necessarily  inherent  in  the  very  constitution  of  a  court 
1  f  equity,  and  therefore  one  cannot  help  thinking  Sir  Edward  Coke  much 
to  blame  in  the  attempt  he  made  in  the  time  o(  Lord  Kile-mere.  to  rob  the 
chancery  of  this  part  of  its  jurisdiction.  See  2  Whitlock  of  Par!.  390;  1 
Chan.  Rep.  Append.   11. 

t  Uetlev.  jo  :    Hard.   23. 

X  For  the  nature  of  an  attaint,  and  how  far  it  is  in  use  at  this  day,  see 
3  B.  C-,  cap.  25.  p-  402. 


52  Doctor  and  Student. 

Doct.  And  of  that  matter  I  would  likewise  gladly  hear 
thy  opinion,  specially  in  cases  grounded  upon  the  laws  of 
England,  for  I  have  not  heard  but  little  thereof  in  time  past: 
but  before  thou  put  any  case  thereof,  I  would  that  thou 
wouldest  shew  me  how  these  two  questions  after  thy  opinion 
are  to  be  understood. 

Chap.  XIX. —  Of  what  I azv  this  question  is  to  be  under- 
stood, that  is  to  say  where  conscience  shall  be  ruled  after 
the  I  azv. 

The  law  whereof  mention  is  made  in  this  question,  that 
is  to  say,  where  conscience  shall  be  ruled  by  the  law,  is 
not,  as  me  seemeth,  to  be  understood  only  of  the  law  of 
reason,  and  of  the  law  of  God,  but  also  of  the  law  of  man, 
that  is  not  contrary  to  the  law  of  reason,  nor  the  law  of  God, 
but  it  is  superadded  unto  them  for  the  better  ordering  of  the 
commonwealth  :  for  such  a  law  of  man  is  always  to  be  set 
as  a  rule  in  conscience,  so  that  it  is  not  lawful  for  a  man  to 
frame  it  on  the  one  side,  ne  on  the  other:  for  such  a  law 
of  man  hath  not  only  the  strength  of  man's  law.  but  also 
the  law  of  reason,  or  of  the  law  of  God,  whereof  it  is  de- 
rived. For  laws  made  by  men,  which  have  received  of 
God  power  to  make  laws,  be  made  by  God.  And  there- 
fore conscience  must  be  ordered  by  the  law,  as  it  must  be 
upon  the  law  of  God  and  upon  the  law  of  reason.  And 
furthermore,  the  law  whereof  mention  is  made  in  the  latter 
end  of  the  chapter  next  before,  that  is  to  say,  in  the  question 
wherein  it  is  asked  where  the  law  is  to  be  left  and  forsaken 
for  conscience,  is  not  to  be  understood  of  the  law  of  reason, 
nor  of  the  law  of  God  ;  fcr  those  two  laws  may  not  be  left. 
Nor  is  it  not  to  be  understood  of  the  law  of  man  that  is 
made  in  particular  cases,  and  that  is  consonant  to  the  law 
of  reason,  and  to  the  law  of  God,  that  yet  that  law  should 
be  left  for  conscience  :  for  of  such  a  law  made  by  man,  con- 
science must  be  ruled,  as  it  is  said  before,,  Nor  it  is  not  to 
be  understood  of  a  law  made  by  man  commanding  or  pro- 
hibiting any   thing  to  be  done  that  is  against  the  law  of 


Dialogue   I. — Chap.  19.  53 

reason  or  the  law  of  God.  For  if  any  law  made  by  him,  bind 
any  person  to  any  thing  that  is  against  the  said  laws,  it  is  no 
law,  but  a  corruption,  and  manifest  error.  Therefore,  aftei 
them  that  be  learned  in  the  laws  of  England,  the  said  question, 
that  is  to  sav,  where  the  law  is  to  be  left  for  conscience,  and 
where  not,  is  to  be  understood  in  divers  manners,  and  after 
divers  rules,  as  hereafter  shall  somewhat  be  touched. 

First,  Many  unlearned  persons  believe  that  it  is  lawful 
for  them  to  do  with  good  conscience  all  things,  which  if 
they  do  them,  they  shall  not  be  punished  therefore  by  the 
law,  though  the  law  doth  not  warrant  them  to  do  that  they 
do,  but  only,  when  it  is  done,  doth  not  for  some  reasonable 
consideration  punish  them  that  do  it,  but  leaveth  it  only  to 
his  conscience.  And  therefore  many  persons  do  ofttimes 
that  they  should  not,  and  keep  as  their  own  that  that  in 
conscience  they  ought  to  restore.  Wherefore  there  is  the 
law  of  England  in  this  case. 

If  two  men  have  a  wood  jointly,  and  the  one  of  them 
selleth  the  wood,  and  keepeth  all  the  money  wholly  to  him- 
self;* in  this  case  his  fellow  shall  have  no  remedy  against 
him  by  law  :|  for  as  they,  when  they  took  the  wood  jointly, 
put  each  other  in  trust,  and  were  content  to  occupy  to- 
gether :  so  the  law  suffereth  them  to  order  the  profits  thereof 
according  to  the  trust  that  each  of  them  put  the  other  in. 
And3Tet  if  one  took  all  the  profits,  he  is  bound  in  conscience 
to  restore  the  hall  to  his  fellow :  lor,  as  the  law  giveth  him 
right  only  to  half  the  land,  so  it  giveth  him  right  onlv  in 
conscience  to  halt  the  profits.  And  yet  nevertheless,  it 
cannot  be  said  in  that  case,  that  the  law  is  against  con- 
science, for  the  law  never  willeth,  ne  commandeth  that  one 
should  take  all  the  profits,  but  leaveth  it  to  their  conscience  ; 
so  that  no  default  can  be  found   in  the  law,  but  in  him  that 

Co.  Litt.  1S7;  1  Cro.  S03. 
t  This  is  now  altered  by  slat-  4  and  5  Ann.,  ci6,  bv  which  it  is  provided, 
that  joint  tenants,  ami  tenants  in  common,  and  their  executors  and  adminis- 
trators, shall  have  an  account  against  the  others,  as  bailiffs  lor  receiving 
more  than  their  proportion,  and  against  their  executors  and  administra- 
tors. 


54  Doctor  and  Student. 

taketh  all  the  profits  to  himself  may  be  assigned  default, 
who  is  bound  in  conscience  to  reform  it,  if  he  will  save  his 
soul,  though  he  cannot  be  compelled  thereto  by  the  law. 
And  therefore  in  this  case,  and  other  like,  that  opinion 
which  some  have,  that  they  may  do  with  conscience  all 
that  they  shall  not  be  punished  for  by  the  law  if  they  do  it, 
it  is  to  be  left  for  conscience  ;  but  the  law  is  not  to  be  left 
for  conscience. 

Also  many  men  think,  that  if  a  man  have  land  that  an- 
other hath  title  to,  if  he  that  hath  the  right  shall  not,  by  the 
action  that  is  given  him  by  the  law  to  recover  his  right  by, 
recover  damages,  that  then  he  that  hath  the  land  is  also 
discharged  of  damages  in  conscience  ;  and  that  is  a  great 
error  in  conscience  ;  for  though  he  cannot  be  compelled  to 
yield  the  damages  by  no  man's  law,  yet  he  is  compelled 
thereto  by  the  law  of  reason,  and  by  the  law  of  God, 
whereby  we  be  bound  to  do  as  ive  would  be  done  to,  and 
that  we  should  not  covet  our  neighbour's  goods.  And 
therefore  if  tenant  in  tail  be  disseised,  and  the  disseisor  dieth 
seised,  and  then  the  heir  in  the  tail  bringeth  a  formedon  * 
and  recovereth  the  land,  and  no  damages,  for  the  law  giveth 
him  no  damage  in  that  case  ;f  yet  the  tenant  by  conscience 
is  bound  to  yield  damages  to  the  heir  in  tail  from  the  death 
of  his  ancestor.  Also  it  is  taken  by  some  men,  that  the 
law  must  be  left  for  conscience,  where  the  law  doth  not 
suffer  a  man  to  deny  that  he  hath  before  affirmed  in  court 
of  record,  or  for  that  he  hath  wilfully  excluded  himself 
thereof  for  some  other  cause  :  as  if  the  daughter  that  is 
only  heir  to  her  father  will  sue  livery  with  her  sister  that  is 
a  bastard,  in  that  case  he  shall  not  be  received  to  say  that 
her  sister  is  a  bastard  \%  insomuch  that  if  her  sister  take 
half  the  land  with  her,  there  is  no  remedy  against  her  by 

*  The   writ  of   formedon   is   now  seldom  brought,    it    being  an   easier 
method  to  try  titles  by  objectione  jirmce. 
f  2  Danv.  Abr.  455,  456. 
J  Co.  Litt.  170. 


Dialogue   I. — Chap.  19.  55 

the  law.*  And  no  more  there  is  of  diversity  in  other  es- 
topples,  which  were  too  long  to  rehearse  now.  And  yet 
the  party  that  may  take  advantage  by  such  an  estopple,  by 
the  law,  is  bound  in  conscience  to  forsake  that  advantage, 
especially  if  he  were  so  estopped  by  ignorance,  and  not  by 
his  own  knowledge  and  assent.  For  though  the  law  in 
such  cases  giveth  no  remedy  to  him  that  is  estopped,  yet 
the  law  judgeth  not  that  the  other  hath  right  unto  the  thing 
that  is  in  variance  betwixt  them. 

And  it  is  to  be  understood,  that  the  law  is  to  be  left  for 
conscience,  where  a  thing  is  tried  and  found  by  verdict 
against  the  truth  ;  for  in  the  common  law  the  judgment 
must  be  given  according  as  it  is  pleaded  and  tried,  like  as 
it  is  in  other  laws,  that  the  judgment  must  be  given  accord- 
ing to  that  that  is  pleaded  and  proved.  And  it  is  to  be  un- 
derstood, that  the  law  is  to  be  left  for  conscience,  where  the 
cause  of  the  law  doth  cease  :  for  when  the  cause  of  the  law 
doth  cease,  the  law  also  doth  cease  in  conscience,  as  ap- 
peareth  by  this  case  hereafter  following.  f 

A  man  maketh  a  lease  for  term  of  life,  and  after  a 
stranger  doth  waste  :  wherefore  the  lessee  brin<reth  an  ac- 
tion  of  trespass,  and  hath  judgment  to  recover  damages, 
having  regard  to  the  treble  damages  that  he  shall  yield  to 
him  in  the  reversion  :  and  after  he  in  the  reversion,  before 
action  of  waste  sued,  dieth,  so  that  the  action  of  waste  is 
thereby  extincted  :  then  the  tenant  for  term  of  life,  though 
he  may  sue  execution  of  the  said  judgment  by  the  law.  yet 
he  may  do  it  by  conscience  ;  for  in  conscience  he  may  take 
no  more  than  he  is  hutted  by  the  said  trespass,  because  he 
is  not  charged  over  with  treble  damages  to  his  lessor.  Also 
it  is  to  be  understood,  where  a  law  is  grounded  upon  a  pre- 
sumption, if  the  presumption  be  untrue,  then  the  law  is  not 
to  be  holden  in  conscience.  And  now  I  have  shewed  thee 
somewhat  of  the  question,  that  is  to  say,  where  the  law  shall 

•  But  this  kind  of  estoppel  will  not  bind  in  chancery.      Carv's  Rep.  26; 
Pollexfen,  67. 
f  Noy's  Max.  2. 


$6  Doctor  and  Student. 

be  ruled  after  conscience,  I  pray  thee  shew  me  whether 
there  be  not  like  diversities  in  other  laws,  betwixt  law  and 
conscience. 

Doct.  Yes,  verily,  very  many,  whereof  thou  hast  recited 
one  before,  where  a  thing  that  is  untrue  is  pleaded  and 
proved  ;  in  which  case  judgment  must  be  given  according, 
as  well  in  the  law  civil  as  in  the  law  canon.  And  another 
case  is,  that  if  the  heir  make  not  his  inventory,  he  shall  be 
bound  after  the  law  civil  to  all  the  debts,  though  the  goods 
amount  not  to  so  much  :  and  the  law  canon  is  not  against 
that  law,  and  yet  in  conscience,  the  heir,  which  in  the  laws 
of  England  is  called  an  executor,  is  not  in  that  case  charged 
with  the  debts,  but  according  to  the  value  of  the  goods. 
And  now  I  pray  thee  shew  me  some  cases  where  conscience 
shall  be  ruled  after  law. 

Stud.  I  will  with  good-will  shew  thee  somewhat  as  me- 
thinketh  therein. 

Chap.  XX. — Here  follow  divers  cases  zvhere  conscience  is 
to  be  ordered  after  the  law. 

The  eldest  son  shall  have  and  enjoy  his  father's  lands  at 
the  common  law  in  conscience,  as  he  shall  in  the  law.* 
And  in  Burgh-english  f  the  younger  son  shall  enjoy  the 
inheritance,  and  that  in  conscience.  And  in  Gavelkind^ 
all  the  sons  shall  inherit  the  land  together,  as  daughters, 
at  the  common  law  ;§  and  that  in  conscience.  And  there 
can  be  no  other  cause  assigned  why  conscience  in  the  first 
case  is  with  the  eldest  brother,  and  in  the  second  with  the 
younger  brother,  and  in  the  third  case  with  all  the  breth- 

*2  B.  C.  214. 

t  Ante,  35. 

\  Ante,  34. 

§  See  statute  31  H.  8,  c  3,  whereby  divers  lands  in  the  county  of  Kent 
are  disgavelled  and  directed  to  descend  in  future  like  other  lands;  and  Mr. 
Robinson,  in  his  book  on  Gavelkind,  79,  mentions  six  other  statutes  for 
disgavelling  particular  lands  in  Kent,  though  the  statute  31  H.  8,  is  the 
only  one   in  print. 


Dialogue   I. — Chap.   20.  57 

ren  ;  but  because  the  law  of  England,  by  reason  of  divers 
customs,  doth  sometime  give  the  land  wholly  to  the  eldest 
son,  sometime  to  the  youngest,  and  sometime  to  all.  Also 
if  a  man  of  his  mere  motion  make  a  feoffment  of  two  acres 
of  land  lying  in  two  several  shires,  and  maketh  livery  of 
seisin  in  the  one  acre  in  the  name  of  both  ;  in  this  case  the 
feoffee  hath  right  but  only  in  the  acre  whereof  livery  of 
seisin  was  made,  because  he  hath  no  title  by  the  law  :  but 
if  both  acres  had  been  in  one  shire,  he  had  had  good  right 
to  both.*  And  in  these  cases  the  diversity  of  the  law 
maketh  the  diversity  of  conscience. 

Also,  if  a  man  of  his  mere  motion  make  a  feoffment  of 
a  manor,  and  saith  not,  to  have  and  to  hold,  etc.,  with  the 
appurtenances  ;  in  that  case  the  feoffee  hath  right  to  the 
demesne  lands,  and  to  the  rents,  if  there  be  atturnments, 
and  to  the  common  pertaining  to  the  manor  ;f  but  he  hath 
neither  right  to  the  advowsons,  appendant,  if  any  be,  nor 
to  the  villeins  regardant. %  But  if  this  term,  with  the  ap- 
purtenances, had  been  in  the  deed,  the  feoffee  had  right  in 
conscience,  as  well  to  the  advowsons  and  villeins,  as  to  the 
residue  of  the  manor.  But  if  the  king,  of  his  mere  motion, 
give  a  manor  with  the  appurtenances,  yet  the  donee  hath 
neither  right  in  law  nor  conscience  to  the  advowsons  nor 
villeins. §  And  the  diversity  of  the  law,  in  these  cases, 
makes  the  diversity  of  conscience. 

Also,  if  a  man  make  a  lease  for  a  term  of  years,  yield- 
ing to  him  and  to  his  heirs  a  certain  rent,  upon  condition 
that  if  the   rent  be  behind    by  forty  days,  etc.,  that   then  it 

*  And  yet  if  the  scite  of  the  manor  of  Dale  is  in  the  county  of  Essex, 
and  parcel  of  the  same  manor  extends  into  the  county  of  Middlesex,  and 
a  feoffment  is  made  of  the  manor  of  Dale,  and  livery  of  seisin  is  made  of 
the  scite  of  the  manor  which  lies  in  the  county  of  Es^ex  by  this  livery  of 
seisin,  the  parcel  of  the  manor  which  lies  in  Middlesex  shall  pa-s.  because, 
says  Perkins,  it  is  parcel  of  the  thing,  viz:  the  manor  of  which  the  feoff- 
ment is  made.      Perk.,  sec.  22j- 

fi  Co.  iS. 

J  But  by  the  better  opinion  it  seems  tiny  pass  as  incidents  without  the 
words  with  the  appurtenances.  Co.  Litt.  ui  :  j  15.  C. 33,23;  Shep.  Touch. 
186. 

§  Wood's  Inst.  153. 


58  Doctor  and  Student. 

shall  be  lawful  to  the  lessor  and  his  heirs  to  re-enter  ;*  and 
after  the  rent  is  behind,  the  lessor  asketh  the  rent  accord- 
ing to  the  law,  and  it  is  not  payed,  the  lessor  dieth,  his  heir 
entereth  ;  in  this  case  his  entry  is  lawful  both  in  law  and 
conscience.  But  if  the  lessor  had  died  before  he  had  de- 
manded the  rent,  and  his  heir  demand  the  rent,  and  because 
it  is  not  payed,  he  re-entereth  ;  in  that  case  his  re-entry  is 
not  lawful  neither  in  law  nor  conscience. 

Also,  if  the  tenant  in  dower  sow  her  land,  and  die  before 
the  corn  is  ripe  ;f  the  corn  in  conscience  belongeth  to  her 
executors,  and  not  to  him  in  reversion  :  but  otherwise  it  is 
in  conscience  of  grass  and  fruits.  And  the  diversity  of  the 
law  maketh  there  also  the  diversity  in  conscience. 

Also,  if  a  man  seized  of  lands  in  his  demesne  as  of  fee 
bequeath  the  same  by  his  last  will  to  another,  and  to  his 
heirs,  and  dieth  ;}  in  this  case  the  heir,  notwithstanding  the 
will,  hath  a  right  to  the  land  in  conscience.  And  the  reason 
is,  because  the  law  judgeth  that  will  to  be  void;§  and  as 
it  is  void  in  the  law,  so  it  is  void  in  conscience. 

*Shep.  Touch.  147. 

f  2  Inst.  80,  81. 

%  Ante,  23. 

§  Before  the  conquest,  it  is  generally  thought  lands  and  tenements  were 
devisable;  but  at  that  period,  or  soon  after,  probably  in  the  reign  of  H.  2, 
the  power  of  disposition  ceased  by  consequence  of  the  feudal  tenure,  ex- 
cept of  socage  lands,  which  in  some  cities  and  boroughs  remained  devisa- 
ble, it  being  of  very  small  consequence  into  whose  power  such  tenures 
fell.  But  though  the  general  rule  of  law  was,  that  a  man  could  not  make 
a  will  of  his  lands,  ye-  he  might  dispose  of  the  use  and  profits  to  whom  he 
pleased,  for  there  was  a  clear  distinction  between  the  one  and  the  other. 
Wright's  Tenures,  172.  A  man  might  have  made  a  feoffment  of  his  prop- 
erty to  another  person,  properly  called  the  feoffee,  to  the  use  of  the  feoffor 
and  his  heirs.  By  this  conveyance  the  whole  legal  estate  was  vested  in 
the  feofFee,  and  the  feoffor  had  nothing,  and  could  dispose  of  nothing  but 
the  mere  simple  usufructuary  interest  arising  from  the  confidence  and  trust 
reposed  in  the  feoffee.     4  Burn's  Ecc.  Law,  57;  ante,  23. 

Thus  the  land  and  the  use  were  distinct,  and  the  feoffor  being,  as  we  have 
seen,  hindered  from  devising  the  one,  he  continued  to  dispose  of  the  other 
till  the  twenty-seventh  year  of  the  reign  of  H.  8,  when  a  statute  was  made, 
commonly  called  the  statute  of  uses,  which  put  a  stop  to  the  practice  of 
devising  uses  by  joining  the  possession  and  the  use  together  in  the  feoffor. 

Another  statute  was  likewise  made  in  the  34th  and  35th  of  the  same 


Dialogue   I. — Chap.   20. 


59 


Also,  if  a  man  grant  a  rent  for  term  of  life,  and  make  a 
lease  of  land  to  the  same  grantee  for  term  of  life,  and  the 
tenant  alieneth  both  in  fee  ;  in  this  ease  he  in  the  reversion 
hath  good  title  to  the  land  both  in  law  and  conscience,  and 
not  to  the  rent.  And  the  reason  is,  because  the  land  by  the 
alienation  is  forfeited  by  the  law  to  him  in  the  reversion, 
and  not  the  rent.* 

Also,  if  lands  be  given  to  two  men,  and  to  a  woman  in 
fee,  and  after  one  of  the  men  enter-marrieth  with  the  woman, 
and  alieneth  the  land,  and  dieth  ;  in  this  case  the  woman 
hath  right  but  only  to  the  third  part :  but  if  the  man  and 
the  woman  had  been  married  together  before  the  first  feoff- 
ment, then  the  woman,  notwithstanding  the  alienation  of 
her  husband,  should  have  had  right  in  law  and  conscience 
to  the  one  half  of  the  land.f  And  so  in  these  two  cases 
conscience  dotii  follow  the  law  of  the  realm.  Also,  if  a 
man  have  two  sons,  one  before  espousals,  and  another  after 
espousals,  and  after  the  father  dieth  seised  of  certain  lands; 
in  this  case  the  younger  son  shall  enjoy  the  lands  in  this 
realm,  as  heir  to  his  father  both  in  law  and  conscience. 
And  the  cause  is,  because  that  son  born  alter  espousals  is 
by  the  law  of  this  realm  the  very  heir,  and  the  elder  son  is 
a  bastard. I  And  of  these  cases,  and  many  other  like  in 
the  laws  of  England,  may  be  formed  the  syllog/sm  of  con- 
science, or  the  true  judgment  of  conscience,  in  this  man- 
ner. Sinderesis  ministreth  the  major  thus,  Right  wiseness 
is  to  be  done  to  every  man  :  upon  which  major  the  law  of 
England  ministereth  the  minor  thus,  The  inheritance  be- 
longeth  to  the  son  born  after  espousals,  and  not  to  the  son 

kind's  reign,  which  gave  a  testamentary  power  over  lands  suhject  onlv  to 
certain  conditions  and  restrictions  with  regard  to  the  devising  of  lands 
holden  by  knight's  service. 

These  restrictions  were  afterward  taken  away  by  statute  12  C.  2,  c  24, 
which  abolished  all  tenures  by  knight's  service;  and  now  a  man  mav  dis- 
pose of  his  freehold  lands  at  his  free-will  and  pleasure.  See  stat.  29  Car. 
2,  c.  3. 

*  Wood's  Con.  S4;    Roll.  Abr.  S54. 

t  Litt.,  sec.  291. 

I  2  Inst.  96,  97;   2  B.  C.  247. 


60  Doctor  and  Student. 

born  before  espousals  :  then  conscience  maketh  the  conclu- 
sion, and  saith,  Therefore  the  inheritance  is  in  conscience 
to  be  given  to  the  son  born  after  espousals.  And  so  in 
other  cases  infinite  may  be  formed  by  the  law,  the  syllogism 
or  the  right  judgment  of  conscience,  wherefore  they  that  be 
learned  in  the  law  of  the  realm  say,  that  in  every  case 
where  any  law  is  ordained  for  the  disposition  of  lands  and 
goods,  which  is  not  against  the  law  of  God,  nor  yet  against, 
the  law  of  reason,  that  the  law  bindeth  all  them  that  be  un- 
der the  law  in  the  court  of  conscience,  that  is  to  say,  in- 
wardly in  his  soul.  And  therefore  it  is  somewhat  to  mar- 
vel, that  spiritual  men  have  not  endeavored  themselves  in 
time  past  to  have  more  knowledge  of  the  king's  laws  than 
they  have  done,  or  than  they  yet  do  :  for  by  the  ignorance 
thereof  they  be  ofttimes  ignorant  of  that  that  should  order 
them  according  to  right  and  justice,  as  well  concerning 
themselves,  as  other  that  come  to  them  for  counsel.  And 
now,  forasmuch  as  I  have  answered  to  thy  questions  as  well 
as  I  can  ;  I  pray  thee  that  thou  wilt  shew  me  thy  opinion 
in  divers  cases  formed  upon  the  law  of  England,  where'in 
I  am  in  doubt  what  is  to  be  holden  therein  in  conscience. 

Doct.  Shew  me  thy  questions,  and  I  will  say  as  me 
thinketh  therein. 

Chap.  XXI. —  The  first  question  of  the  student. 

Stud.  If  any  infant  that  is  of  the  age  of  twenty  years,  and 
hath  reason  and  wisdom  to  govern  himself,  selleth  his  land, 
and  with  the  money  thereof  buyeth  other  land  of  greater  value 
than  the  first  was,  and  taketh  the  profits  thereof;  whether 
may  the  infant  ask  his  first  land  again  in  conscience,  as  he 
may  by  the  law. 

Doct.  What  thinkest  thou  in  that  question? 

Stud.  Me  seemeth,  that,  forasmuch  as  the  law  of  Eng- 
land* in  this  article  is  grounded  upon  a  presumption,  that  is 
to  say,  that  infants  commonly  afore  they  be  of  the  age  of 

*3  New  Abr.  128. 


Dialogue    I. — Chap.    21.  61 

twenty-one  years  be  not  able  to  govern  themselves,  that 
yet,  forasmuch  as  that  presumption  faileth  in  this  infant, 
that  he  may  not  in  this  case  with  conscience  ask  the  land 
again  that  he  hath  sold  to  his  great  advantage,  as  before 
appeareth. 

Doct.  Is  not  this  sale  of  the  infant,  and  the  feoffment 
made  thereupon,  if  any  where,  voidable  in  the  law? 

Stud.  Yes,  verily. 

Doct.  And  if  the  feoffee  have  no  right  by  the  bargain,* 
nor  by  the  feoffment  made  thereupon,  whereby  should  he 
then  have  right  thereto,  as  thou  thinkest? 

Stud.  By  conscience,  as  me  thinketh,  for  the  reason  that 
I  have  made  before. 

Doct.  And  upon  what  law  should  that  conscience  be 
grounded  that  thou  speakest  of?  for  it  cannot  be  grounded 
by  the  law  of  the  realm,  as  thou  hast  said  thyself.  And 
methinketh,  that  it  cannot  be  grounded  upon  the  law  of 
God,  nor  upon  the  law  of  reason  :  for  feoffments  nor  con- 
tracts be  not  grounded  upon  neither  of  those  laws,  but  upon 
the  law  of  man. 

Stud.  After  the  law  of  property  was  ordained,  the  people 
might  not  conveniently  live  together  without  contracts  ;  and 
therefore  it  seemeth  that  contracts  be  grounded  upon  the 
law  of  reason,  or  at  least  upon  the  law  that  is  called  Jus 
gentium. 

Doct.  Though  contracts  be  grounded  upon  the  law  that 
is  called  Jus  gentium,  because  they  be  so  necessarv, 
and  so  general  among  all  people  ;  yet  that  proveth  not  that 
contracts  b  :  grounded  upon  the  law  of  reason  :f  for  though 
the  law  called  Jus  gentium  be  much  necessary  for  the 
people,  yet  it  may  be  changed.  And  therefore  if  it  were 
ordained  by  statute,  that  there  should  be  no  sale  of  land,  ne 
no  contract  of  goods,  and  if  there  were,  that  it  should  be 
void,  so  that  every  man  should  continue  still  seized  of  his 
lands,  and  possessed  of  his  goods;  the  statute  were   good. 

•  Litt.,  sec.  259;   2  Roll.  Abr.  2. 
t  Post.   174. 


62  Doctor  and  Student. 

And  then  if  a  man  against  that  statute  sold  his  land  for  a 
sum  of  money,  yet  the  seller  might  lawfully  retain  his  land 
according  to  the  statute  :  and  then  he  were  bound  to  no 
more  but  to  repay  the  money  that  he  received,  with  reason- 
able expences  in  that  behalf.  And  so  in  like  wise  me 
thinketh  that  in  this  case  the  infant  may  with  good  con- 
science re-enter  into  his  first  land ;  because  the  contract 
after  the  maxims  of  the  law  of  the  realm  is  void  ;  for,  as  I 
have  heard,  the  maxims  of  the  law  be  of  as  great  strength 
in  the  law  as  statutes.  And  some  think  that  in  this  case 
the  infant  is  bound  to  no  more,  but  only  to  re-pay  the  money 
to  him  that  he  sold  his  land  unto,  with  such  reasonable  cost 
and  charges  as  he  hath  sustained  by  reason  of  the  same. 
But  if  a  man  sell  his  land  by  a  sufficient  and  lawful  con- 
tract, though  there  lack  livery  of  seisin  or  such  other  solem- 
nities of  the  law,  yet  the  seller  is  bound  in  conscience  to 
perform  the  contract.*  But  in  this  case  the  contract  is  suf- 
ficient, and  so  me  thinketh  great  diversity  betwixt  the  cases. 
Stud.  For  this  time  I  hold  me  contented  with  thy 
opinion. 

Chap.  XXII. —  The  second  question  of  the  student. 

If  a  man  that  hath  lands  for  term  of  life  be  impanelled 
upon  an  inquest,  and  thereupon  leeseth  issues  and  dieth  ;f 
whether  may  those  issues  be  levied  upon  him  in  the  rever- 
sion in  conscience,  as  they  may  be  by  the  law? 

Doct.  If  they  may  be  levied  by  the  law,  what  is  the 
cause  why  thou  dost  doubt  whether  they  may  be  levied  by 
conscience? 

Stud.  For  there  is  a  maxim  in  the  laws  of  England, J 
that  where  two  titles  run  together,  the  eldest  title  shall  be 
preferred.  And  in  tins  case  the  title  of  him  in  the  rever- 
sion is  before  the  title  of  the  forfeiture  of  the   issues.      And 


*  See  where,  and  in  what  cases,  a  court  of  equity  will  supply  the  want 
of  livery  and  seisin  in  Vin.  Abr.,  title  Feoffment,  205. 
t  Noy's  Max.  30. 
J  Ante,  32;   Noy's  Max.  15. 


Dialogue    I. — Chap.   11.  63 

therefore  I  doubt  somewhat  whether  they  may  be    lawfully 
levied. 

Doct.  By  that  reason  it  seemeth  thou  art  in  doubt  what 
the  law  is  in  this  case ;  but  that  must  necessarily  be 
known,  for  else  it  were  in  vain  to  argue  what  conscience 
will  therein. 

Stud.  It  is  certain  that  the  law  is  such  ;  and  so  it  is  like 
wise  if  the  husband  forfeit  issues,  and  die,  those  issues  shall 
be  levied  on  the  lands  of  the  wife.* 

Doct.  And  if  the  law  be  such,  it  seemeth  that  conscience 
is  so  in  like  wise  :  for  sith  it  is  the  law,  that  for  execution 
of  justice  every  man  shall  be  impanelled  when  need  re- 
quireth  ;  it  seemeth  reasonable,  that  if  he  will  not  appear, 
that  he  should  have  some  punishment  for  his  not  appear- 
ance, for  else  the  law  should  be  clearly  frustrate  in  that 
point.  And  the  pain,  as  I  have  heard,  is,  that  he  shall 
lose  issues  to  the  king  for  his  not  appearance.  Wherefore 
it  seemeth  not  inconvenient,  nor  against  conscience,  though 
the  law  be,  that  those  issues  shall  be  levied  of  him  in  the 
reversion,  for  that  the  condition  was  secretly  understood  in 
the  law  to  pass  with  the  lease,  when  the  lease  was  made. 
And  therefore  it  is  for  the  lessor  to  beware,  and  to  prevent 
the  danger  at  the  making  of  the  lease,  or  else  it  shall  be 
adjudged  his  own  default.  And  then  this  particular  maxim, 
\\  hereby  such  issues  shall  be  levied  upon  him  in  the  rever- 
sion, is  a  particular  exception  in  the  law  of  England,  from 
the  general  maxim  that  thou  hast  remembered  before,  that 
is  to  say,  that  where  two  titles  run  together,  that  the  eldest 
title  shall  be  preferred  :f  and  so  in  this  case  the  general 
maxim  in  the  point  shall  hold  no  place,  neither  in  law  nor 
in  conscience,  for  by  this  particular  maxim  the  strength,  of 
the  general  maxim  is  restrained  to  every  intent,  that  is  to 
say,  as  well  in  law  as  in  conscience. 

*  Noy's  Max.  30. 
t  Ante,  3 2. 


64  Doctor  and   Student. 


Chap.  XXIII. —  The  third  question  of  the  student. 

Stud.  If  a  tenant  for  term  of  life,  or  for  term  of  years,  do 
waste,  whereby  they  be  bound  by  the  laws  to  yield  to  him 
in  the  reversion  treble  damages,  and  so  shall  forfeit  the 
place  wasted  :*  whether  he  is  also  bound  in  conscience  to 
pay  those  damages,  and  to  restore  that  place  wasted  im- 
mediately after  the  waste  done,  as  he  is  in  the  single  dam- 
ages, or  that  he  is  not  bound  thereto  till  the  treble  damages 
and  place  wasted  be  recovered  in  the  king's  court. 

Doct.  Before  judgment  given  in  the  treble  damages,  and 
of  the  place  wasted,  he  is  not  bound  in  conscience  to  pay 
them,  for  it  is  uncertain  what  he  should  pay  :  but  it  sufficeth 
that  he  be  ready  till  judgment  be  given  to  yield  damages 
according  to  the  value  of  the  waste  ;  but  after  the  judgment 
given,  he  is  bound  in  conscience  to  yield  the  treble  damages, 
and  also  the  place  wasted.  And  the  same  law  is  in  all 
statutes  penal,  that  is  to  say,  that  no  man  is  bound  in  con-' 
science  to  pav  the  penalty  till  it  be  recovered  by  the  law.f 

Stud.  Whether  may  he  that  hath  offended  against  such 
a  statute  penal,  defend  the  action,  and  hinder  the  judgment, 
to  the  intent  he  would  not  pay  the  penalty,  but  only  single 
damages? 

Doct.  If  the  action  be  taken  right  wisely  according  to 
the  statute,  and  upon  a  just  cause,  the  defendant  may  in  no 
wise  defend  the  action,  unless  he  have  a  true  dilatory  matter 
to  plead,  which  should  be  hurtful  to  him  it  he  pleaded  not, 
though  he  be  not  bound  to  pay  the  penalty  till  it  be  re- 
covered. 

Chap.  XXIV. —  1  he  fourth  question  of  the  student. 

Stud.  If  a  man  enfeoff  other  in  certain  land  upon  con- 
dition, that  if  he  enfeoff  any  other,  that  it  may  be  lawful  for 
the  feoffor  and  his  heirs  to  re-enter,  etc.,  whether  is  this 
condition  good  in  conscience,  though  it  be  void  in  the  law? 


*2  Inst.  146. 
f  Post.  71- 


Dialogue    I. — Chap.    24.  65 

Doct.  What  is  the  cause  why  this  condition  is  void  in 
Law? 

Stud.  The  cause  is  this,  by  the  law  it  is  incident  to  every 
state  of  fee-simple,  that  he  that  hath  the  estate  may  lawfully 
by  the  law,  and  by  the  gift  of  the  feoffor,  make  a  feoffment 
thereof:*  and  then  when  the  feoffor  restraineth  him  after 
that  he  shall  make  no  feoffment  to  no  man  against  his  own 
former  grant,  and  also  against  the  purity  of  the  state  of  a 
fee-simple,  the  law  judgeth  the  condition  to  be  void  :f  but 
if  the  condition  had  been,  that  he  should  not  have  infeoffed 
such  a  man  or  such  a  man,  that  condition  had  been  good, 
for  yet  he  might  infeoff  other.  % 

Doct.  Though  the  said  condition  be  against  the  effect  of 
the  state  of  a  fee-simple,  and  also  against  the  law  ;  never- 
theless it  is  not  against  the  intent  that  the  parties  agreed 
upon,  and  that  at  the  time  of  the  livery.  And  forasmuch 
as  the  intent  of  the  parties  was,  that  if  the  feoffee  infeoffed 
any  man  of  the  land,  that  the  feoffor  should  enter,  and  to 
that  intent  the  feoffee  took  the  state,  and  after  brake  the  in- 
tent :  it  seemeth  that  the  land  in  conscience  should  return 
to  the  feoffor. 

Stud.  The  intent  of  the  parties  in  the  laws  of  England 
is  void  in  many  cases  :§  that  is  to  say,  if  he  be  not  ordered 
according  to  the  law.  And  if  a  man  of  his  mere  motion, 
without  any  recompence,  intending  to  give  lands  to  another 
and  to  his  heirs,  make  a  deed  unto  him,  whereby  he  giveth 
him  those  lands,  to  haye  and  to  hold  to  him  for  ever,  in- 
tending that  by  the  wox&s  for  ever  the  feoffee  should  have 
the  land  to  him  and  to  his  heirs  ;||  in  this  case  his  intent  is 
void,  and  the  other  shall  have  the  land  only  for  term  of  life. 
Also,  if  a  man  give  lands  to  another,  and  to  his  heirs  for 
term  of  twenty  years,  intending  that  if  the  lessee  die  within 

Shop.  Touch.  126;  post.  84;  2  B.  C.  147. 
t  The  law  is  the  same  in  a  devise  in  fee,  upon  condition  that  the  devisee 
shall  not  alien.     Co.  Lilt.  223. 
\  Vin.  Abr.,  title  Con.  103. 
§  2  Vez.  -4s 
||  Litt.,  sec.  1. 


66  Doctor  and  Student. 

the  term,  that  then  his  heirs  should  enjoy  the  land  during 
the  term  ;*  in  this  case  his  intent  is  void,  for  by  the  law  of 
the  realm  all  chattels  real  and  personal  shall  go  to  the  ex- 
ecutors, and  not  to  the  heir.  Also,  if  a  man  give  lands  to 
a  man  and  to  his  wife,  and  to  a  third  person,  intending  that 
every  of  them  should  take  the  third  part  of  the  land  as 
three  common  persons  should,  his  intent  is  void  ;  for  the 
husband  and  the  wife,  as  one  person  in  the  law,  shall  take 
only  the  one  half,  and  the  third  person  the  other  half.  But 
these  cases  be  always  to  be  understood  where  the  said  es- 
tates be  made  without  any  recompence.  And  forasmuch 
as  in  this  principal  case  the  intent  of  the  feoffor  is  grounded 
against  the  law,  and  that  there  is  no  recompence  appointed 
for  the  feoffment,  methinketh  that  the  feoffor  hath  neither 
right  to  the  land  by  law  nor  conscience  :  for  if  he  should 
have  it  by  conscience,  that  conscience  should  be  grounded 
upon  the  law  of  reason  ;  and  that  it  cannot,  for  conditions 
be  not  grounded  upon  the  law  of  reason,  but  upon  the 
maxims  and  customs  of  the  realm  ;  and  therefore  it  might 
be  ordained  by  statute,  that  all  conditions  made  upon  land 
should  be  void.  And  when  a  condition  is  void  by  the 
maxims  of  the  law,  it  is  as  fully  void  to  every  intent,  as  if 
it  were  made  void  by  statute  :  and  so  methinketh  that  in 
this  case  the  feoffor  hath  no  right  to  the  land  in  law  nor  in 
conscience. 

Doct.   I  am  content  thy  opinion  stand,  till  we  shall  have 
hereafter  a  better  leisure  to  speak  farther  in  this  matter. 

Chap.  XXV. —  The  fifth  question  of  the  student. 

Stud.   If  a  fine  with  proclamation  be  levied  according  to 
the  statute, t   and  no  claim  made  within   five  years,  etc. 4 

♦Godolph.  120;   Off.  of  Exor.  53;    1  Vent.  161;    Bac.  El.  43. 

t  That  is  the  statute  4  II.  7,  c.  24,  by  which  the  common  law,  which  gave 
only  a  year  and  a  day  to  strangers,  to  make  their  claim,  is  altered.  See 
likewise  the  tatute  32  II.  S,  c  36,  and  4  Ann.,  c  16,  s.  16.  By  the  last 
mentioned  act  no  claim  or  entry  to  avoid  a  fine  with  proclamation,  shall 
be  sufficient,  unless  an  action  is  commenced  within  one  year  after  such 
entry  or  claim,  and  prosecuted  with  effect;  and  this  entry  must,  it  seems, 
be  an  actual  entry.     3  Burr.  1897;  Doug.  Rep.  468. 

J  Post,  no,  142;  Bac   El.  51. 


Dialogue    I. — Chap.  25.  67 

whether  is  the  right  of  a  stranger*  extincted  thereby  in  con- 
science, as  it  is  in  the  law? 

Docl.   Upon  what  consideration  was  that  statute  made? 

Stud.  That  the  right  of  lands  and  tenements  mi^ht  be 
the  more  certainly  known,  and  not  to  be  so  uncertain  as 
they  were  before  that  statute. 

Doct.  And  when  any  law  of  man  is  made  for  a  common- 
monwealth,  or  for  the  good  peace  and  quietness  of  the  peo- 
ple, or  lor  any  inconvenience  or  hurt  to  be  saved  from  them, 
that  law  is  good  ;  though  percase  it  extinct  the  right  of  a 
stranger,  and  must  be  kept  in  the  court  of  conscience  :t 
for,  as  it  is  said  before  in  chap.  4,  by  laws  right  wisely  made 
by  man,  it  appeareth  who  hath  right  to  the  lands  and  goods  : 
lor  whatsoever  a  man  hath  by  such  a  law,  he  hath  it  right 
wisely  ;  and  whatsoever  he  holdeth  against  such  a  law.  he 
holdeth  unrightwisely.  And  furthermore  it  is  said  there,  all 
the  laws  made  by  man,  which  be  not  contrary  to  the  law 
of  God,  must  be  observed  and  kept,  and  that  in  conscience, 
and  he  that  despiseth  them  despiseth  God,  and  he  that  re- 
sisteth  them  resisteth  God.  Also  it  is  to  be  understood, 
that  possessions  and  the  right  thereof  are  subject  to  the 
laws,  so  that  they  therefore  with  a  cause  reasonable  may 
be  translated  and  altered  from  one  man  to  another  by  act 
of  the  law.  And  of  this  consideration  that  law  is  grounded, 
that  by  a  contract  made  in  fairs  and  markets  the*  property 
is  altered,  except  the  property  be  to  the  king,  so  that  the 
buyer  pay  toll,  or  do  such  other  things  as  is  accustomed 
there  to  be  done  upon  such  contracts,  and  that  the  buyer 
knoweth   not  the  former  property.!     And  in  the  law  civil 

*  For  the  meaning  and  extent  of  the  word  "stranger,"  in  this  place,  I 
must  refer  the  reader  to  Shepherd's  Touchstone  of  Assurances,  to  and  11.  in 
which  the  different  acceptations  of  the  word  a>  applied  to  lines  ar 
down  in  regular  order. 

t  Ante,  10. 

J  But  there  are  many  other  exceptions  to  which  the  rule  is  liable:  and  as 
they  are  rather  too  numerous  to  fall  conveniently  within  the  compass  of  a 
note.  L  will  direct  the  student  to  those  authorities  where  he  will  find  them 
enlarged  upon.      He  may  turn  to  2  Black.  Comm,  450,  and  2  ln>t.  713. 


68  Doctor  and  Student. 

there  is  a  like  law,  that  if  a  man  have  another  man's  goods 
with  a  title  three  years,  thinking  that  he  hath  right  to  it,  he 
hath  the  very  right  unto  the  thing;  and  that  was  made  for 
a  law,  lo  the  intent  that  the  property  and  right  of  things 
should  not  be  uncertain,  and  that  variance  and  strife  should 
not  be  among  the  people.*  And  forasmuch  as  the  said 
statute  was  ordained  to  give  a  certainty  of  title  in  the  lands 
and  tenements  comprised  in  the  fine,  it  seemeth  that  that 
fine  extincteth  the  title  of  all  other,  as  well  in  conscience, 
as  it  doth  in  the  law.  And  sith  I  have  answered  to  thy 
question,  I  pray  thee  let  me  know  thy  mind  in  one  ques- 
tion concerning  tailed  lands,  and  then  I  will  trouble  thee 
no  farther  at  this  time. 

Chap.  XXVI. — A  question  made  by  the  doctor ',  how  cer- 
tain recoveries  that  be  used  in  the  king's  courts  to  defeat 
tailed  land,  may  stand  with  conscience. 

I  have  heard  say,  that  when  a  man  that  is  seised  of  lands 
in  the  tail  selleth  the  land,  that  it  is  commonly  used,  that 
he  that  buyeth  the  land,  shall,  for  his  surety,  and  for  the 
avoiding  of  the  tail  in  that  behalf,  cause  some  of  his  friends 
to  recover  the  said  lands  against  the  said  tenant  in  tail  : 
which  recovery,  as  I  have  been  credibly  informed,  shall  be 
had  in  this  manner.!  The  demandants  shall  suppose  in 
their  writ  and  declaration,  that  the  tenant  had  no  entry  but 
by  such  a  stranger  as  the  buyer  shall  list  to  name  and  ap- 
point, where  indeed  the  demandants  never  had  possession 
thereof,  nor  yet  the  said  stranger.:}:  And  thereupon  the 
said  tenant  in  tail  shall  appear  in  the  court,  and  by  assent 
of  the  parlies  shall  vouch  to  warrant  one  that  he  knoweth 
well  hath  nothing  to  yield  in  value.  And  the  vouchee  shall 
appear,  and  the  demandants  shall  declare  against  him  ;  and 
thereupon  he  shall  take  a  day  to  imparl  at  the  same  term, 

Wood's  Civil  Law,  167. 
t  Wood's  Inst.  250;  2  B.  C.  358. 
%  Cruise  on  Rec.  II,  12. 


Dialogue   I. — Chap.   26.  69 

and  at  that  day  by  assent  and  covin  of  the  parties  lie  shall 
make  default;  upon  which  default,  because  it  is  a  default 
in  despite  of  the  court,  the  demandants  shall  have  judg- 
ment to  recover  against  the  tenant  in  tail,  and  he  over  in 
value  against  the  vouchee,  and  this  judgment  and  recovery 
in  value  is  taken  for  a  bar  of  the  tail  for  ever.*  How  may 
it  therefore  be  taken,  that  the  law  standeth  with  conscience, 
that  as  it  seemeth,  alloweth  and  favoureth  such  feigned  re- 
coveries? 

Stud.  If  the  tenant  in  tail  sell  the  land  for  a  certain  sum 
of  money,  as  is  agreed  betwixt  them,  at  such  a  price  as  is 
commonly  used  of  other  lands,  and  for  the  surety  of  the 
sale  suffereth  such  a  recovery  as  is  aforesaid ;  what  is  the 
cause  that  moveth  thee  to  doubt  whether  the  said  contract, 
or  the  recovery  made  thereupon,  for  the  surety  of  the  buver 
that  hath  truly  paid  his  money  for  the  same,  should  stand 
with  conscience?  f 

Doct.  Two  things  cause  me  to  doubt  therein.  '  One  is, 
for  that  after  our  Lord  had  given  the  land  of  behest  to 
Abraham  and  to  his  seed,  that  is  to  say,  to  his  children,  in 
possession  alway  to  continue,  he  said  to  Moses,  as  it  ap- 
peareth,  Levit.  25,  The  Land  shall  not  be  sold  for  ever, 
for  it  is  mine:  and  then  our  Lord  assigned  a  certain  man- 
ner how  the  land  might  be  redeemed  in  the  year  of  fn- 
bilee,  if  it  were  sold  before.  And  forasmuch  as  our  Lord 
would  that  the  land  so  given  to  Abraham,  and  his  children, 
should  not  be  sold  for  ever,  it  seemeth  that  he  doth  against 
the  ensample  of  God  that  alieneth  or  selleth  the  land  that 
is  given  to  him  and  to  his  children,  as  lands  entailed  be 
given.  Another  cause  is  this  :  It  appeareth  by  the  com- 
mandment of  God,  that  Thou  shall  not  covet  the  house  of 
thy  neighbour )  etc.  And  if  that  concupiscence  be  prohib- 
ited, more  stronger  than  the  unlawful  taking  and  with- 
holding thereof  is  prohibited  :  and  forasmuch  as  tailed  land, 
when  the  ancestor  is  dead,  is  a  thing  that  of  right  is  belong- 

'    PiLC-Ot    nil    RoC.    12. 

t  Wood's.  Inst.  250. 


7<3  Doctor  and  Student. 

ing  to  his  heir,  for  that  he  is  heir  according  to  the  gift, 
how  may  the  land  with  right  or  conscience  be  holden  from 
him  ? 

Stud.  Notwithstanding  the  prohibition  of  Almighty  God, 
whereby  the  land  that  was  given  to  Abraham,  and  to  his 
seed,  might  not  be  aliened  for  ever,  yet  land  within  walled 
towns  might  lawfully  be  aliened  for  ever,  except  the  lands 
of  the  Levites,  as  appeareth  in  the  said  25th  chapter  of 
Leviticus.  And  so  it  appeareth,  that  the  said  prohibition 
was  not  general  for  every  place,  and  that  among  the  Jews. 
And  it  appeareth  also,  that  it  was  given  only  to  Abraham 
and  his  children,  and  so  it  was  not  generally  to  all  people. 
And  it  appeareth  also,  that  it  extended  not  but  only  to  the 
land  of  promission,  as  it  appeareth  by  the  words  of  the  said 
chapter,  where  it  is  said  thus,  All  the  region  of  on?-  pos- 
session shall  be  sold  under  the  condition  of  redeeming; 
whereby  appeareth  that  lands  in  other  countries  be  not 
bound  to  that  condition,  and  as  they  be  not  bound  to  that 
condition,  by  the  same  reason  it  followeth  that  they  be  not 
bound  to  the  same  succession.  Therefore  that  said  law, 
that  wills  that  the  land  given  to  Abraham,  and  to  his 
seed,  shall  not  be  sold  for  ever,  bindeth  no  land  out  of 
the  land  of  promission  ;  and  some  men  will  say,  that 
sithen  the  passion  of  our  Lord  was  promulgate  and  known, 
bindeth  not  there.  And  to  the  second  reason,  which  is 
grounded  upon  the  commandment  of  God  ;  it  must  needs 
be  granted  that  it  is  not  lawful  to  any  man  unlawfully  to 
covet  the  house  of  his  neighbour,  and  that  then  more 
stronger  he  may  not  unlawfully  take  it  from  him.  But 
then  it  remaineth  for  thee  yet  to  prove  how  in  this  case  this 
tailed  land,  that  is  sold  by  his  ancestor,  and  whereof  a  re- 
covery is  had  recorded  in  the  king's  court,  may  be  said  the 
lands  of  the  heir. 

Doct.  That  may  be  proved  by  the  law  of  the  realm,  that 
is  to  say,  by  the  statute  of  Westm.  2,  cap.  1,  where  it  is 
said  thus  :*  The  will  of  the  giver  expressly  Contained  in 

"  Wood's  Inst.  2:0. 


Dialogue   I. — Chap.    26.  71 


the  deed  of  his  gift  shall  be  from  henceforth  observed,  so 
that  the)' to  whom  the  tenements  be  so  given  shall  not  have 
power  to  alien,  but  that  the  lands  after  their  death  shall  re- 
main to  the  issue,  or  return  to  the  donor,  if  the  issue  fail.* 
By  the  which  statute  it  appearethf  evidently,  that  though 
they,  to  whom  the  tenements  were  so  given,  aliened  them 
away,  that  yet  nevertheless  they  in  law  and  conscience,  by 
reason  of  the  said  statute,  ought  to  remain  to  their  heirs, 
according  to  the  gift  ;$  for  it  is  holden  commonly  bv  all  doc- 
tors, that  the  commandments  and  rules  of  the  law  of  man, 
or  of  a  positive  law  that  is  lawfully  made,  bind  all  that  be 
subjects  to  the  law  according  to  the  mind  of  the  maker,  and 
that  in  the  court  of  conscience. 

Stud.  Dost  thou  think  that  if  a  man  offend  against  a 
statute  penal,  that  he  offendeth  in  conscience?  Admit  that 
he  do  it  not  of  a  wilful  disobedience,  or  that  he  will  not 
obey  the  law  :  for  if  he  do  it  of  disobedience,  I  think  he 
offendeth. 

Doct.  If  it  be  but  only  a  statute  that  is  called  Popular, 
it  bindeth  not  in  conscience  to  the  payment  of  the  penalty, 
till  it  be  recovered  by  the  law,  and  then  it  doth  bind  in  con- 
science :  but  if  a  statute  be  made  principallv  to  remedv  the 
hurt  of  one  party,  and  for  that  hurt  it  giveth  a  penaltv  to 
the  party,  in  that  case  the  offender  of  the  statute  is  bound 
immediately  to  restore  the  damages  to  the  value  of  the  hurt, 
as  it  is  upon  the  statute  of  waste  ;§  but  the  penalty  above 
the  hurt  he  is  not  bound  to  pay  till  judgment  be  given,  as 
it  is  said  before.  But  statutes,  by  the  which  it  is  assigned 
who  shall  haveright  or  property  to  these  lands  and  tenements, 
or  to  these  goods  or  chattels,  if  it  be  not  against  the  law  of 
God  nor  against  the  law  of  reason,  bind  all  them  that  be 
subject  to  the  law  in  law  and  conscience.  And  such  a 
statute   is  the   statute  of  Westminster   2,  whereof  we   have 

-  Inst.  333. 
+  Post.  82. 
J  1  Inst.  335. 
§  Ante,  64. 


72  Doctor  and  Student. 

treated  before  ;  wherefore  it  must  be  observed  by  con- 
science. 

Stud.  But  some  hold  that  the  statute  of  Westm.  2  was 
made  of  a  singularity  and  presumption  of  many  that  were 
at  the  said  parliament,  for  exalting  and  magnifying  of  their 
own  blood  ;*  and  therefore  they  say  that  that  statute  made 
by  such  a  presumption  bindeth  not  in  conscience. 

Doct.  It  is  very  perilous  to  judge  for  certain  that  the 
said  statute  was  made  of  such  presumption  as  thou  speakest 
of:  for  there  be  many  considerations  to  prove  that  the  said 
statute  was  not  made  of  such  presumption,  but  rather  of  a 
very  good  mind  of  all  the  parliament,  or  at  the  least  of  the 
most  part  thereof,  and  for  the  commonwealth  of  all  the 
realm  ;  and  first  in  the  king,f  the  which  in  the  said  parlia- 
ment was  the  head,  and  most  chief  and  principal  part  ot 
the  parliament,  (as  he  is  in  every  parliament)  cannot  be 
noted  to  be  such  intent :  for  it  is  not  necessary,  nor  was  it 
not  then  in  use,  that  lands  of  the  crown  should  be  entailed. 
And  in  spiritual  men,  ne  yet  in  certain  burgesses  and  citi- 
zens of  the  said  parliament,  which  at  that  time  had  no  land, 
there  can  be  noted  no  such  singularity ;  nor  yet  in  the 
noblemen  and  gentlemen,  nor  such  other  as  were  of  the 
said  parliament,  and  had  lands  and  tenements.  It  is  not 
good  to  judge  in  certain  that  they  did  it  of  such  presump- 
tion ;  but  it  is  good  and  expedient  in  this  case,  as  it  is  in 
other  cases  that  be  in  doubt,  to  hold  the  surer  way,  and 
that  is,  that  it  was  made  of  charity,  to  the  intent  that  he, 
nor  the  heirs  of  him  to  whom  the  land  was  given,  should 
not  fall  into  extreme  poverty,  and  thereby  haply  run  into 
offence  against  God 4  And  though  it  were  true,  as  they 
say,  that  it  was  not  made  of  charity,  but  of  presumption 
and  singularity,  as  they  speak  of:  nevertheless,  forasmuch 
as  the  statute  is  not   against  the  law  of  God,§  nor  against 

•  Lord  Coke  in  particular  is  very  severe  in  his  animadversions  upon  this 
act.  Mildmay's  Case,  6  Co.  Rep.  40,  6,  tho'  in  other  places  he  seems  to 
commend  it.     Co.  Litt.  19,  392. 

t  See  section  the  second  of  this  statute. 

t  2  Inst.  334. 

§  Post.  79. 


Dialogue   I. — Chap.  26.  73 

the  law  of  reason,  it  must  be  observed  by  all  them  that  be 
subjects  unto  that  law.  For  as  John  Gerson,  in  the  treatise 
that  he  entitled  in  Latin,  Dc  vita  sj)irituali  animce,  the 
fourth  lesson,  and  the  third  corollary,  saith,  that  God  wills 
that  makers  of  laws  judge  only  of  outward  things,  and  reserve 
secret  things  to  him.  And  so  it  appeareth  that  man  may 
not  judge  of  the  inward  intent  of  the  deed,  but  of  such 
things  as  be  apparent  and  certain  :  but  it  is  not  apparent 
that  there  was  any  such  corrupt  intent  in  the  makers  of  the 
said  statute  :  how  may  it  therefore  be  said  that  the  law  is 
good  or  rightwise,  that  not  only  suffereth  such  things 
against  the  statute,  but  also  against  the  commandment  of 
God? 

Stud.  To  that  some  answer  and  say,  that  when  the  land 
is  sold,  and  a  recovery  is  had  thereupon  in  the  king's  court 
of  record,  that  it  sufliceth  to  bar  the  tail  in  conscience  ;  for 
they  say,  that  as  the  tail  was  first  ordained  by  the  law,  so 
they  say  that  by  the  law  it  is  adnulled  again. 

Doct.  Be  thou  thyself  judge,  if  in  that  case  there  be  like 
authority  in  the  making  of  the  tail  as  there  is  in  the  adnull- 
ing  thereof:  for  it  was  ordained  by  authority  of  parliament,* 
the  which  is  alway  taken  for  the  most  high  court  in  this 
realm  before  any  other,  and  it  is  adnulled  by  a  false  sup- 
posal,  for  that,  that  they  that  be  named  demandants  should 
have  right  to  the  land,  where  in  truth  they  never  had  right 
thereto  :  whereupon  followeth  a  false  supposal  in  the  writ, 
and  a  false  supposal  in  the  declaration,  and  a  voucher  to 
warrant  by  covin  of  such  a  person  as  hath  nothing  to  yield 
in  value  ;f  and  thereupon  bv  covin  and  collusion  of  the  par- 
ties followeth  the  default  of  the  vouchee,  by  the  which  de- 
fault the  judgment  shall  be  given.  And  so  all  the  judgment 
is  derived  and  grounded  of  the  untrue  supposal  and  covin 
of  the  parties,  whereby  the  law  of  the  realm,  that  hath  or- 
dained such  a  writ  of  entry  to  help  them  that  have  rights 
to  lands  or  tenements,  is  defrauded,  the  court  is  deceived. 


*Co.  Litt.  no;  .4  Inst.  36. 
t  Piggot  on  Rcc  12,  19. 


74  Doctor   and  Student. 

the  heir  is  disherited,  and,  as  it  is  to  doubt,  the  biryer  and 
the  seller,  their  heirs  and  assigns,  having  knowledge  of  the 
tail,  be  bound  to  restitution.  And  verily  I  have  heard  many 
times,  that  after  the  law  of  the  realm  such  recoveries  should 
be  no  bar  to  the  heir  in  the  tail,  if  the  law  of  the  realm 
might  be  therein  indifferently  heard. 

Shtd.  I  cannot  see  but  that  after  the  law  of  the  realm  it 
is  a  bar  of  the  tail ;  for  when  the  tenant  in  tail  hath  vouched 
to  warranty,  and  the  vouchee  hath  appeared  and  entered 
into  the  warranty,  and  after  hath  made  default  in  despite 
of  the  court,  whereupon  judgment  is  given  for  the  demand- 
ant against  the  tenant,  and  for  the  tenant  that  he  shall  re- 
cover in  value  against  the  vouchee  ;*  if  the  heir  in  the  tail 
should  after  bring  XMsformedon,  and  recover  the  lands  en- 
tailed, and  after  the  vouchee  purchaseth  lands,  then  should 
the  heir  also  have  execution  against  him  to  the  value  of 
the  lands  intailed,  as  heir  to  his  ancestor  that  was  tenant  in 
the  first  action,  and  so  he  should  have  his  own  lands,  and 
also  the  lands  recovered  in  value.  And  therefore,  because 
of  the  presumption  that  the  vouchee  may  purchase  lands 
after  the  judgment,  some  be  of  opinion  that  it  is  in  the  law 
a  good  bar  of  the  tail.f 

Doct.  I  suppose  that  in  that  case  thou  hast  put  that  the 
vouchee  may  bar  the  heir  in  tail  of  his  recovery  in  value, 
because  he  hath  recovered  the  first  lands.  Nevertheless  I 
will  take  a  respite  to  be  advised  of  that  recovery  in  value. 
And  if  thou  canst  yet  shew  me  any  other  consideration, 
why  the  said  recoveries  should  stand  with  conscience,  I 
pray  thee  let  me  hear  thy  conceit  therein  \\  for  the  multi- 
tude of  the  said  recoveries  is  so  great,  that  it  were  great 
pity  that  all  should  be  bound  to  restitution  that  have  lands 
by  such  recoveries,  sith  there  is  none  (as  far  as  I  can  hear) 
disposed  them  to  restore. 

Stud.  Some  men  make  another  reason  to  prove  that  the 

2  B.  C.  360. 
t  Wood's  Inst.  252. 
t  Post,  80. 


Dialogue   1. — Chap.  26.  75 

said  recoveries  should  be  sufficient  by  the  law  to  avoid  the 
statute  of  Westminster,  and  if  they  be  sufficient  thereto, 
they  be  sufficient  in  conscience. 

Doct.  What  is  their  reason  therein? 

Stud.  In  the  seventh  year  of  Henry  VIII,*  cap.  4, 
;imong  other  things  it  is  enacted,  that  all  recoverers,  their 
heirs  and  assigns,  may  avow  and  justify  for  rents,  services 
and  customs  by  them  recovered,  as  they  against  whom 
they  recovered  might  have  done.  And  then  they  say,  that 
when  the  parliament  gave  to  such  recoverers  authority  to 
avow  and  justify  for  such  rents,  customs,  and  services  as 
they  recovered,  that  the  intent  of  the  parliament  was,  that 
such  recoverers  should  have  right  to  that  for  the  which  they 
should  avow  or  justify  :  for  else  they  say  that  it  should  be 
in  vain  to  give  them  such  power,  and  that  the  parliament 
should  else  be  taken  in  manner  as  fortifiers  of  wrongful 
titles:  and  so  they  say  that  such  recoverers,  by  reason  of 
the  said  statute,  have  right  by  the  law. 

Doct.  That  statute,  as  it  seemeth,  was  made  only  to  give 
to  the  recoverers  a  form  to  avow  and  justify,  which  they 
had  not  before,  though  they  had  recovered  upon  a  good 
title.  And  the  cause  why  they  had  no  form  to  avow  or  jus- 
tify before  the  said  statute  was,  forasmuch  as  the  recoverers 
did  not  by  the  pretence  of  their  action  affirm  the  possession 
of  him  or  them  against  whom  they  recovered,  nor  claimed 
not  by  them,  but  rather  disaffirmed  and  destroyed  their 
estate.  And  therefore  they  cannot  alledge  any  continuance 
of  their  title  by  them,  as  they  may  that  have  rents  or  services, 
or  such  other,  of  the  grant  of  other  by  deed  or  by  line.  And 
therefore,  as  it  seemeth,  the  most  principal  intent  ol  the 
statute  was,  that  such  recoverers  should  avow  and  justify 
tor  rents,  services  and  customs,  as  they  should  or  might  do 
that  had  them  by  line  or  deed  ;  not  having  any  respect  as 
it  seemeth  whether  they  recovered  against  tenant  in  tee- 
simple  or  in  fee-tail  ;  nor  whether  the  recoveries  were  had 
upon  a  rightful  title.     And  therefore,  as   me   seemeth,  the 

'  I'i^got  on  Rec.  \<j- 


76  Doctor  and  Student. 

said  statute  neither  affirmeth  nor  disaffirmeth  the  title  of  re- 
coverers,  whereby  they  do  avow  :  for  if  a  man  had  right 
before  the  recovery,  the  right  should  remain  unto  him  not- 
withstanding the  said  statute  ;  and  so  me  seemeth  that  the 
title  of  them  that  have  the  land  entailed  by  such  recoveries 
is  nothing  fortified  nor  affirmed  by  the  said  statute,  but  that 
they  are  in  the  same  case  as  they  were  before.  What 
thinkest  thou  therein? 

Stud.  This  matter  is  great ;  for,  as  thou  sayest,  there  be 
so  many  that  have  tailed  lands  by  such  recoveries,  that  it 
were'great  pity  and  heaviness  to  condemn  so  many  persons, 
and  to  judge  that  they  all  were  bound  to  restitution.  For  I 
think  there  be  but  few  in  this  realm  that  have  lands  of  any 
notable  value,  but  that  they  or  their  ancestors,  or  some 
other  by  whom  they  claim,  have  had  part  thereof  by  such 
recoveries :  insomuch  that  lords  spiritual  and  temporal, 
knights,  'squires,  rich  men  and  poor,  monasteries,  colleges 
and  hospitals  have  such  land,  for  such  recoveries  have  been 
used  of  long  time  :*  who  may  think  therefore,  without  great 
heaviness,  that  so  many  men  should  be  bound  to  restitution, 
and  that  yet,  as  thou  sayest,  no  man  disposeth  him  to  make 
restitution?  And  so  I  am  in  a  manner  perplexed,  and  wot 
not  what  to  say  in  this  case,  but  that  yet  I  trust  that  igno- 
rance may  excuse  many  persons  in  that  behalf. 

*  The  origin  of  common  recoveries  is  a  subject  upon  which  there  has 
been  a  diversity  of  opinions.  Some  imagine  that  the  sera  of  their  com- 
mencement was  in  the  reign  of  Edward  the  Third,  and  they  adduce  Octa- 
vian  Lombard's  case,  44  Ed.  3,  c.  21,  in  support  of  their  opinion;  whilst 
others  affirm  that  they  were  not  introduced,  nor  so  much  as  heard  of  before 
I  Imrv  the  VIII. 's  time.  Jenk.  Cent.  250,  pi.  4.  Others  again  with  more  shew 
of  reason,  and  on  better  authority,  suppose  that  common  recoveries  origi- 
nated in  Taltarun's  case,  in  the  12th  year  of  Edward  the  Fourth.  Piggot  on 
Rcc.  S.  At  that  period,  much  distinguished  for  the  wisdom  of  the  prince 
who  sat  upon  the  throne,  it  is  probable  that  mankind,  knowing  that  it 
would  be  in  vain  to  get  the  statute  dc  donis  repealed  by  any  act  of  the  leg- 
islature, on  account  of  the  great  power  of  the  barons,  Cruise  on  Rec.  9,  nat- 
urally turned  their  attention  to  common  recoveries,  which  being  excepted 
out  of  that  statute,  were  found  effectual  to  remedy  the  train  of  inconveni- 
ences which  it  had  introduced.  The  judges  have  therefore  invariably  al- 
fordcd  them  their  countenance,  and  they  are  now  become  the  common  as- 
surances of  the  kingdom. 


Dialogue    I. — Chap.  16. 


71 


Doct.  Ignorance  of  the  deed  may  excuse,  but  ignorance 
of  the  law  excuseth  not,*  but  it  be  invincible,  that  is  to  say, 
that  they  have  done  that  in  them  is  to  know  the  truth  :f  as 
to  counsel  with  learned  men,  and  to  ask  them  what  the  law 
is  in  that  behalf;  and  if  they  answer  them  that  they  may 
do  this  or  that  lawfully,  then  they  be  thereby  excused  in 
conscience  ;  but  yet  in  man's  law  they  be  not  thereby  dis- 
charged :  but  they  that  have  taken  upon  them  to  have 
knowledge  of  the  law,  be  not  excused  by  ignorance  of  the 
law  ;  ne  no  more  are  they  that  have  a  wilful  ignorance,  and 
that  would  rather  be  ignorant  than  to  know  the  truth,  and 
therefore  they  will  not  dispose  them  to  ask  any  counsel  in 
it.  And  if  it  be  of  a  thing  that  is  against  the  law  of  God. 
or  the  law  of  reason,  no  man  shall  be  excused  of  i<mo- 
ranee  ;  and  so  there  be  but  few  that  be  excused  by  ignorance. 

Stud.  What  then  ?  Shall  we  condemn  so  many  and  so 
notable  men  ? 

Doct.  We  shall  not  condemn  them,  but  we  shall  give 
them  their  peril. 

Stud.  Yet  I  trust  their  danger  is  not  so  great  that  they 
should  be  bound  to  restitution  :  for  John  Gerson  saith  in  his 
said  book  called  "  De  imitate  ecclesiastica,  consideratione 
secunda,"  £>iiod  communis  error  facit  jus,%  that  is  to  saw 
A  common  error  maketh  a  right.  Of  which  words,  as  it 
seemeth,  some  trust  may  be  had,  that  though  it  were  fully 
admitted  the  said  recoveries  were  first  had  upon  an  unlaw- 
ful ground,  and  against  the  good  order  of  conscience,  that 
yet  nevertheless,  forasmuch  as  they  have  been  used  of  long 
time,  so  that  they  have  been  taken  of  clivers  men  that  have 
been  right  well  learned,  in  manner  as  for  a  law,  that  the 
buyers  partly  be  excused,  so  that  they  be  not  bound  to  res- 
titution. And  moreover,  it  is  certain  that  the  statute  of 
Westminster  2,  nor  none  other  statute  made  by  man,  can- 
not be  o[   greater  value  or  strength   than  was    the    bond    oi 

This  was  likewise  a  maxim  of  the  Roman  law.     F.  22,   C.  9. 
t  Douglas  Rep.  471;  post.  24S. 
X  Shep.  Touch.  39;  Nov's  Max.  27;  Jenk.  Cent.  250. 


78  Doctor  and  Student. 

matrimony  that  was  ordained  of  God.  And  though  that 
bond  of  matrimony  was  indissolvable,  yet  nevertheless 
Moses  suffered  a  bill  of  refusal  of  the  Jews,  which  in  Latin 
is  called  Libellum  rcfudii,  and  so  they  might  thereby  for- 
sake their  wives,  as  it  appeareth  Deut.  22.  And  therefore 
like  as  a  dispensation  was  suffered  against  that  bond,  so  it 
seemeth  it  may  be  against  this  statute. 

Doct.  As  to  that  reason  that  thou  hast  las?  made  of  a  bill 
of  refusal,  let  all  purchasers  of  land  hear  what  our  Lord 
saith  in  the  Gospel  of  the  Jews,  of  that  bill  of  refusal  ; 
Matthew  19,  where  he  saith  thus,  For  the  hardness  of  your 
hearts  Moses  suffer  cd^you  to  leave  your  wives:  for  at  the 
beginning  it  zvas  not  so.  Of  which  words  doctors  hold 
commonly,  that  though  such  a  bill  of  refusal  was  lawful, 
so  that  they  that  refused  their  wives  thereby  should  be  with- 
out pain  in  the  law,  that  yet  it  was  never  lawful  so  that  it 
should  be  without  sin.  And  so  likewise  it  may  be  said  in 
this  case,  that  such  recoveries  be  suffered  for  the  hardness 
of  the  hearts  of  Englishmen,  which  desire  land  and  pos- 
session with  so  great  greediness,  that  thev  can  not  be  with- 
drawn  from  it  neither  by  the  law  of  God,,  nor  of  the  realm. 
And  therefore  the  rich  men  should  not  take  the  possessions 
of  poor  men  from  them  by  power,  without  colour  of  title, 
that  is  to  say,  neither  by  open  disseisin,  or  by  the  only  sale 
of  the  tenant  in  tail,  and  so  to  hold  them  against  the  ex- 
press words  of  the  statute  ;  such  recoveries  have  been  suf- 
fered. And  though  for  their  great  multitude  they  may 
haply  be  without  pain  as  to  the  law  of  the  realm  ;  vet  it  is 
to  tear  that  they  be  not  without  offence  as  against  God.* 
And  as  to  the  other  reason,  that  a  common  error  should 
make  a  right,  those  words,  as  me  seemeth,  be  to  be  thus 
understood,  that  a  custom  used  against  the  law  of  man  shall 
hi-  taken  in  some  countries  for  law,  if  the  people  he  suf- 
fered so  to  continue.  And  vet  some  men  call  such  a  cus- 
tom an  error,  because  that  the  continuance  of  that  custom 
against  the  law  was  partly  an  error  in  the    people,  for  that 

*  Post.  80. 


Dialogue    I.-  -Chap.  26. 


79 


they  would  not  obey  the  law  that  was  made  by  their  supe- 
riors to  the  contrary  of  that  custom.  But  it  is  to  be  under- 
stood, that  the  said  recoveries,  though  they  have  been  loner 
used,  may  not  be  taken  to  have  the  strength  of  a  custom  ; 
for  many,  as  well  learned  as  unlearned,  have  always  spoken 
against  them  and  yet  do.*  And  furthermore,  as  I  have 
heard  say,  a  custom  or  prescription  in  this  realm  against 
the  statutes  of  the  realm  prevails  not  in  the  law.f 

Stud.  Though  a  custom  in  this  realm  prevaileth  not 
against  a  statute  as  to  the  law,  yet  it  seemeth  that  it  may 
prevail  against  the  statute  in  conscience  :  for  though  igno- 
rance of  a  statute  excuseth  not  in  the  law, J  nevertheless  it 
may  excuse  in  conscience;  and  so  it  seemeth  that  it  may 
do  of  a  custom. 

Doct.  But  if  such  recoveries  cannot  be  brought  into  a 
lawful  custom  in  the  law,  it  seemeth  the}'  may  not  be  brought 
into  a  custom  in  conscience  ;  for  conscience  must  alwav  be 
grounded  upon  the  law,  and  in  this  case  it  cannot  be 
grounded  upon  the  law  of  reason,  nor  upon  the  law  of  God  ; 
and  therefore  if  the  law  of  man  serve  not,  there  is  no  ground 
whereupon  conscience  in  this  case  may  be  grounded.  And 
at  the  beginning  of  such  recoveries,  they  were  taken  to  be 
good,  because  the  law  should  warrant  them  to  be  good,  and 
not  by  reason  of  any  custom  :  and  so  if  the  reason  of  the 
law  will    not   serve   in   the   recoveries,  the   custom    cannot 

*  Cro.  347  ;  Doug.  102  :   Cro.  Car.  347. 

fBut  a  man  may  lawfully  proscribe  against  a  statute  in  the  affirmative. 
Co.  Lit-  115;  2  Buls.  36.  And  if  a  statute  in  the  negative  is  declarative 
of  the  ancient  law,  that  is  in  affirmance  of  the  common  law,  there,  a  pre- 
scription may  be'alledged  against  it.  As  a  man  may  prescribe  to  cut  his 
own  wood  within  a  forest  without  the  view  of  the  forester,  though  the  statute 
of  34  Edw.  1  provides  that  none  shall  cut  any  tree,  though  his  own,  within 
the  forest,  without  the  view  of  the  forester ;  because  this  act  is  but  in  affirmance 
of  the  common  law.  Co.  Lit  115.  So  a  man  mayprescrjbe  to  hold  a  leet 
oftener  than  twice  a  year,  and  that  other  daj  s  than  are  set  foi  th  in  the  sta 
of  Magna  Charta,  cap.  35,  because  the  statute,  though  in  the  nega  -  -till 

a  confirmation  of  the  ancient  law.  Cro.  Eliz.  1J5.  It  therefore  follow-. 
that  it  is  only  against  a  statute  which  is  introductive  of  a  new  law  that  a 
prescription  can  't  be  made. 

J  Ante,  46. 


80  Doctor   and   Student. 

help  ;  for  an  evil  custom  is  to  be  put  away.  And  therefore 
me  seemeth  that  the  recoveries  be  not  without  offence 
against  God,  though  haply  for  their  great  multitude,  and 
that  there  should  not  be  as  it  were  a  subversion  of  the  in- 
heritance of  many  in  this  realm,  as  well  of  spiritual  as 
temporal,  they  be  without  pain  in  the  law  of  the  realm  ;* 
except  such  recoveries  as  by  the  common  course  of  the  law 
be  voidable  in  the  lav/  by  reason  of  some  use,  or  of  some 
other  special  matter  :  but  what  pain  that  is,  I  will  not  tern- 
erously  judge,  but  commit  it  to  the  goodness  of  our  Lord, 
whose  judgment  be  very  deep  and  profound  :  nor  I  will  not 
fully  affirm  that  they  that  have  lands  by  such  recoveries 
ought  to  be  compelled  to  restitution  :  but  this  seemeth  to 
me  to  be  good  counsel,  that  every  man  hereafter  hold  that 
is  certain,  and  leave  that  is  uncertain,  and  that  is,  that  he 
keep  himself  from  such  recoveries,  and  then  he  shall  be 
free  from  all  scrupulousness  of  conscience  in  that  behalf. 

Stud.  It  seemeth  that  in  this  question  thou  ponderest 
greatly  the  said  statute  of  Westminster  2,f  and  that  though 
it  be  but  only  a  law  made  by  man,  that  yet,  forasmuch  as 
it  is  not  against  the  law  of  reason  nor  the  law  of  God,  thou 
thickest  that  it  must  be  holden  in  conscience  :  and  over  that, 
as  it  seemeth,  thou  art  somewhat  in  doubt  whether  those 
recoveries  be  any  bar  to  the  heir  in  the  tail  by  the  law  of 
the  realm,  unless  that  he  have  in  value  in  deed  upon  the 
vouchee  \\  and  that  thou  wilt  thereupon  take  a  respite,  or 
thou  shew  thy  full  mind  therein  :  and  in  likewise  thou 
thinkest,  as  I  take  it,  that  those  recoveries  cannot  be  brought 
into  a  custom,  but  that  the  longer  that  they  be  suffered  to 
continue,  if  they  be  not  good  by  the  law,  the  greater  is  the 
offence  against  God.§  And  therefore  thou  ponderest  little 
that  custom,  but  yet  thou  agreest  that  it  is  good  to  spare  the 
multitude  of  them  that  be  past,||  lest  a  subversion  of  the  in- 


*  Ante,  78;   post.  81. 
t  Ante,  72. 
X  Ante,  73. 
§  Ante,  78. 
||  Ante,  74,  80. 


Dialogue    I. — Chap.   27.  81 


heritance  of  many  of  this  realm  might  follow,  and  great 
strife  and  variance  also,  if  they  should  be  adnulled  for  the 
time  past,  except  there  be  an)'  other  special  cause  to  avoid 
them  by  the  law,  as  thou  hast  touched  in  the  last  reason  :* 
but  thou  thinkest  that  it  were  good,  that  from  henceforth 
such  recoveries  should  be  clearly  prohibited,  and  not  be 
suffered  to  be  had  in  use,  as  they  have  been  before  ;  and 
thou  counsellest  all  men  therefore  to  refrain  themselves 
from  such  recoveries  hereafter. 

Doct.  Thou  takest  well  that  I  have  said,  and  according 
as  I  have  meant  it. 

Stud.  Now,  I  pray  thee,  sith  I  have  heard  thy  question 
of  these  recoveries,  according  to  thy  desire,  that  thou 
wouldest  answer  me  to  some  particular  questions  concern- 
ing tailed  lands,  whereof  thou  hast  at  this  time  given  us 
occasion  to  speak. 

Doct.  Shew  me  these  questions,  and  I  will  shew  thee 
my  mind  therein  with  good -will. 

Chap.  XXVII. —  The  first  question  of  the  student,   con- 
cerning tailed  lands. 

Stud.  If  a  disseisor  make  a  gift  in  tail  to  John  at  Stile, 
and  John  at  Stile  for  the  redeeming  of  the  title  of  the  dis- 
seisee agreeth  with  him,  that  he  shall  have  a  certain  rent 
out  of  the  same  land  to  him  and  to  his  heirs,  and  for  the 
surety  of  the  rent  it  is  devised  that  the  disseisee  shall  re- 
lease his  right  in  the  land,  etc.,  and  that  such  a  recovery 
as  we  have  spoken  of  before  shall  be  had  against  the  said 
John  at  Stile  to  the  use  of  the  payment  of  the  said  rent, 
and  of  the  former  tail  :  whether  standeth  that  recovery 
well  with  conscience  or  not,  as  thou  thinkest? 

Doct.  I  suppose  it  doth,  for  it  is  made  for  the  strength 
and  surety  of  the  tail,  which  the  disseisee  might  have 
clearly  defeated  ami  avoided  if  he  would  :  and  therefore  I 
think,  if  the  said  John  at  Stile  had  granted  to  the  disseisee 

*  Piggot  on  Rec  S. 


82  Doctor  and  Student. 

only  by  his  deed  a  certain  rent  tor  releasing  of  his  title, 
that  grant  should  have  bound  the  heirs  in  the  tail  for  ever. 
And  then  if  the  disseisee  for  his  more  surety,  will  have  such 
a  recover}-,  as  before  appeareth,  it  seemeth  that  recovery 
standeth  with  good  conscience. 

Stud.  It  seemeth  that  thy  opinion  is  right  good  in  this 
matter.  And  also  it  appeareth  that  with  a  reasonable  cause 
some  particular  recoveries  may  stand  both  with  law  and 
conscience  to  bar  a  tail. 

Chap.  XXVIII. —  The  second  question  of  the  student ,  con- 
cerning tailed  lands. 

If  a  tenant  in  tail  suffer  a  recovery  against  him  of  his 
lands  entailed,  to  the  intent  that  the  recoverer  shall  stand 
seised  thereof  to  the  use  of  a  certain  woman  whom  he  in- 
tendeth  to  take  to  his  wife,  for  term  of  life,  and  after  to  the 
use  of  the  first  tail,  and  after  he  marrieth  the  same  woman  : 
whether  standeth  that  recovery  with  conscience,  though 
other  recoveries  upon  bargains  and  sales  did  not. 

Doct.  It  seemeth  yes  ;  for  though  the  statute  be,  that 
they  to  whom  the  tenements  be  so  given  should  not  have 
power  to  alien,  but  that  the  lands  after  their  death  should 
remain  to  their  issues,  or  revert  to  the  donors  if  the  issues 
failed  :  yet  if  he  to  whom  the  lands  were  so  given  take  a 
wife,  and  dieth  seized  without  heir  of  his  body,  and  the 
donor  enter,  the  woman  shall  recover  against  him  the  third 
part,  to  hold  in  the  name  of  her  dowry  for  term  of  her  life, 
though  the  tail  be  determined.*  And  the  same  law  is  of 
tenant  by  the  courtesy,  that  is  to  say,  of  him  that  hap- 
peneth  to  many  on"  that  is  an  inheritrix  of  the  land  en- 
tailed, and  they  have  issue  ;  the  wife  dieth,  and  the  issue 
dieth  ;f  he  shall  have  the  lands  for  term  of  his  life  as  tenant 
by  the  courtesy,  notwithstanding  the  words  of  the  statute, 
which  say,  that  after  the  death  of  the  tenant  in  tail  without 

•Litt,  sec.  36,  53. 
t  Wood's  Inst.  123. 


Dialogue    I. — Chap.    28.  83 


issue:,  the  lands  shall  revert  to  the  donor;*  and  I  think  the 
cause  is,  because  the  intent  of  the  statute  shall  not  be  taken 
that  it  intended  to  put  away  such  titles  as  the  law  should 
give  by  reason  of  the  tail  ;  and  so  it  seemeth  that  a  like  in- 
tent of  the  statute  shall  be  so  taken  for  jointures,  for  else 
the  statute  might  be  sometime  a  letting  of  matrimony,  and 
it  is  not  like  that  the  statute  intended  so.  And  therefore  it 
seemeth,  that  by  the  only  deed  of  the  tenant  in  tail  a  joint- 
ure may  be  made  by  the  intent  of  the  statute,  though  the 
words  of  the  statute  serve  not  expressly  for  it ;  for  many 
times  the  intent  of  the  letter  shall  be  taken,  and  not  the 
bare  letter  ;f  as  it  appeareth  in  the  same  statute,  where  it  is 
said,  that  he  to  whom  the  lands  be  given  shall  have  no 
power  to  alien  ;  yet  the  same  statute  is  construed,  that 
neither  he  nor  the  heirs  of  his  bod)'  shall  have  no  power  to 
alien  :  and  so  methinketh  that  such  an  intent  shall  be  taken 
here  for  saving  of  jointures. 

Stud.  Truth  it  is,  that  sometime  the  intent  of  a  statute 
shall  be  taken  farther  than  the  express  letter  stretcheth  ; 
but  yet  there  may  no  intent  be  taken  against  the  expre>> 
words  of  the  statute,  for  that  should  be  rather  an  interpre- 
tation of  the  statute,  than  an  exposition  :  and  it  cannot  be 
reasonably  taken,  but  that  the  intent  of  the  makers  of  the 
said  statute  was,  that  the  land  should  remain  continually  in 
the  heirs  of  the  tail,  as  long  as  the  tail  endureth  ;  and  there 
can  no  jointure  be  made  neither  by  deed  nor  by  recoverv. 
but  that  the  tail  must  thereby  be  discontinued.  And  there- 
fore this  case  of  jointure  is  not  like  to  the  said  cases  of 
tenant  in  dower,  or  tenant  by  the  courtesy.  For  the  title 
of  dowry  and  of  tenancy  by  the  courtesy  groweth  most 
specially  by  the  continuance  of  the  possession  in  the  heirs 
ot  the  tail,  bul  it  is  not  so  of  jointures:  and  therefore  by 
the  only  deed  ot'  the  tenant  in  the  tail,  there  may  no  joint- 
ures be  lawfully  made  against  the  express  words  of  the 
statute.     And  if  there  he  any   made  by  way  of  recovery, 


Ante  70. 
t  -i  Bac.  Abr.  645. 


84  Doctor  and   Student. 

then  it  seemeth  that  it  must  be  put  under  the  same  rule  as 
other  recoveries  must  be  of  lands  entailed. 

Chap.  XXIX. —  The  third  question   of  the  student,  con- 
cerning tailed  lands. 

If  John  at  Noke,  being  seised  of  land  in  fee,  of  his  mere 
motion  makes  a  feoffment  of  certain  lands  to  the  intent  that 
the  feoffees  shall  thereof  make  a  gift  to  the  said  John  at 
Noke,  to  have  to  him  and  to  the  heirs  of  his  body,  and  they 
make  the  gift  according  :  and  after  the  said  John  at  Noke 
falleth  into  debt,  wherefore  he  is  taken  and  put  in  prison, 
and  thereupon  for  payment  of  his  debts  he  selleth  the  same 
land,  and  for  surety  of  the  buyer  he  suffereth  a  recovery  to 
be  had  against  him  in  such  a  manner  as  before  appeareth  : 
whether  standeth  that  recovery  with  conscience  or  not? 

Doct.  I  would  here  make  a  little  digression  to  ask  thee 
another  question,  or  that  I  make  answer  to  thine  ;  that  is 
to  say,  to  feel  thy  mind  how  the  law  by  the  which  the  body 
of  the  debtor  shall  be  taken  and  cast  into  prison,  there  to 
remain  till  he  have  paid  the  debt,  may  stand  with  con- 
science, specially  if  he  have  nothing  to  pay  it  with  ;  for  as 
it  seemeth  if  he  will  relinquish  his  goods,  which  in  some 
laws  is  called  in  Latin,  Ccdcre  bonis,  that  he  shall  not  be 
imprisoned  ;  and  that  is  to  be  understood  most  specially, 
if  he  be  fallen  into  poverty,  and  not  through  his  own  de- 
fault.* 

Stud.  There  is  no  law  in  the  realm  that  the  defendant 
may  in  any  case  Ccdcre  bonis,  and,  as  me  seemeth,  if  there 
were  such  a  law,  it  should  not  be  indifferent-;  for  as  to  the 
knowledge  of  him  that  the  money  is  owing  to,  the  debtor 
might  Ccdcre  bonis,  that  is  to  say,  relinquish  his  goods, 
and  yet  retain  to  himself  secretly  great  riches.  And  there- 
fore that  law  in  such  case  seemeth  more  indifferent  and 
righteous,  that  committeth  such  a  debtor  to  the  conscience 
of  the  plaintiff  to  whom  the  money  is  owing,  than  the  com- 


'[  he  editor  presumes  that  a  reference  is   here  made,  principally  to  the 
imperial  or  civil  law.      Wood's  Civil  Law,  4th  edition,  p.  323- 


Dialogue    I. — Chap.    29. 


mitting  him  to  the  conscience  of  him  that  is  the  debtor;  for 
in  the  debtor  some  default  may  be  assigned  ;  but  in  him  to 
whom  the  money  is  owing  may  be  assigned  no  default. 

Duel.  But  if  he  to  whom  the  debt  is  owing  knoweth  that 
the  debtor  hath  nothing  to  pay  the  debt  with,  and  that  he  is 
fallen  into  poverty  by  some  casualty,  and  not  through  his 
own  default;  doth  the  law  of  England  hold  that  he  may 
with  good  conscience  keep  the  debtor  still  in  prison  till  he 
be  paid  ? 

Stud  Nay  verily,  but  it  thinketh  more  reasonable  to 
appoint  the  liberty  and  the  judgment  of  conscience  in  that 
case  to  the  debtee  than  to  the  debtor,  lor  the  cause  before 
rehearsed.  And  then  the  debtee,  if  he  knew  the  truth,  is 
(as  thou  hast  said)  bound  in  conscience  to  let  him  goat 
liberty,  though  he  be  not  compellable  thereto  by  the  law.* 
And  therefore,  admitting  it  for  this  time,  that  the  law  of 
England  in  this  point  is  good  and  just,  I  pray  thee  that 
thou  wilt  make  answer  to  my  question. 

Doct.  I  will  with  good-will  :  and  therefore,  as  me  seem- 
eth,  forasmuch  as  it  appeareth  that  the  said  gift  was  made 
of  the  mere  liberty  and  free-will  of  the  said  John  at  Noke, 
and  without  any  recompence,  that  therefore  it  cannot  be 
otherwise  taken,  but  that  the  intent  of  the  said  John  at 
Noke.  as  well  at  the  time  of  the  said  feoffment,  as  at  the 
time  that  he  received  again  the  said  gift  in  the  tail, 
was,  that  If  he  happened  afterwards  to  fall  into  poverty, 
that  he  might  alien  the  said  land  to  relieve  him  with  :  for 
how  may  it  be  thought  that  a  man  will  so  much  ponder  the 
wealth  of  his  heir,  that  he  will  forget  himself?  And  so  it 
seemeth,  that  not  only  the  said  recovery  standeth  with  con- 
science, but  also  if  he  had  made  only  a  feoffment  01  the 
land,  the  feoffment  should  be  in  conscience  a  good  bar  of 
the  (ail  :  but  it  the  said  feoffment  and  gift  had  been  made  in 
consideration  of  any  recompense  of  money,  or  for  any 
matrimony,  or  such   other,   then   the   feoffment   of  the   said 

See  tin-  statute  iS  Geo.  2,  c.  13;  13  Geo.  j.  c.  2S;  1  Geo.  3.  c.  17:  3 
Geo.  3,  c.  41,  lor  the  relief  of  iiiM>;>  ors. 


86  Doctor  and   Student. 


John  at  Noke  should  not  bind  his  heir,  and  if  he  then 
suffered  any  recovery  thereof,  then  the  recovery  should  be 
of  like  effect  as  other  recoveries  whereof  we  have  treated 
before,  and  that  which  I  said,  it  was  good  to  favour  rather 
for  their  multitude,  than  for  the  conscience.  And  the 
same  law  is,  that  if  the  son  and  the  heir  of  the  said  John 
at  Noke,  in  case  that  the  said  gift  was  made  without  re- 
compence,  alien  the  land  for  poverty  after  the  death  of  his 
father;  the  recovery  bindeth  not  but  as  other  recoveries  do. 
For  it  cannot  be  thought  that  the  intent  of  the  father  was, 
that  any  of  his  heirs  in  tail  should  for  any  necessity  dis- 
herit all  other  heirs  in  tail  that  should  come  after  him,  but 
for  himself,  methinketh,  it  is  reasonable  to  judge  in  such 
manner  as  I  have  said  before. 

Stud.  And  though  the  intent  of  the  said  John  at  Noke, 
when  he  made  the  said  feoffment,  and  when  he  took  again 
the  said  gift  in  tail,  were,  that  if  he  fell  in  need,  that  he 
might  alien  :  yet  I  suppose  that  he  may  not  alien,  though 
percase  for  the  more  surety  he  declared  his  intent  to  be 
such  upon  the  livery  of  seisin  :  for  that  intent  was  contrary 
to  the  gift  that  he  freely  took  upon  him  ;  and  when  any  in- 
tent or  condition  is  declared  or  reserved  against  the  state 
that  any  man  maketh  or  excepteth,  then  such  an  intent  or 
condition  is  void  by  the  law,  as  by  a  case  that  hereafter  fol- 
loweth  will  appear:  that  is  to  say,  If  a  man  make  a  feoff- 
ment in  fee,  upon  condition  that  the  feoffee  shall  not  alien 
to  any  man,  that  condition  is  void:*  for  it  is  incident  to 
every  state  of  the  fee-simple,  that  he  that  is  so  seised 
may  alien.  And  like  as  in  a  lee-simple  there  is  inci- 
dent a  power  to  alien,  so  in  a  state-tail,  there  is  a  secret 
intent  understood  in  the  gift,  that  no  alienation  shall  be 
made. |  And  therefore  though  the  intent  of  the  said  John 
at  Noke  were,  that  if  he  fell  into  poverty,  that  he  might 
sell,  and  though  he  at  the  taking  of  the  gift  openly  de- 
clared his  intent  to  be  so  :  yet  the  intent  should  be  void  by 

2  B.  C.  157;  Co.  Litt.  206;  ante,  65. 
fPost.  211. 


Dialogue   I. — Chap.  30.  87 


the  law,  as  me  seemeth  ;  and  if  it  be  void  by  the  law,  it  is 
also  void  in  conscience  ;  and  so  the  said  recovery  must  be 
taken  in  this  case  to  be  of  the  same  effect,  as  recoveries  of 
other  lands  entailed  be,  and  in  no  other  manner. 

Chap.  XXX. —  The  fourth  question   of  the  student,  con- 
cerning recoveries  of  inheritances  entailed. 

Stud.  It  an  annuity  be  granted  to  a  man,  to  have  and  to 
perceive  to  the  grantee,  and  to  the  heirs  of  his  body,  of  the 
coffers  of  his  grantor,  and  after  the  grantee  suffereth  a  re- 
covery against  him  in  a  writ  of  Entry  by  the  name  of  a 
rent  in  Dale  of  a  like  sum  as  the  annuity  is  of,  with  vouch- 
ers and  judgment,  after  the  common  course,  and  both  par- 
ties intend  that  the  annuity  shall  be  recovered  :  whether 
shall  the  recovery  bind  the  heir  in  tail  of  his  annuity? 

Doct.  What  if  it  were  a  rent  going  out  of  land,  of  what 
effect  should  the  recovery  be  then? 

Stud.  It  should  be  then  of  like  effect  as  if  it  were  of 
land.* 

Doct.  And  so  it  seemeth  to  be  of  this  annuity  ;  for,  as 
me  thinketh,  a  rent  and  annuity  be  of  one  effect;  for  the 
one  of  them  shall  be  paid  in  ready  money,  as  the  other 
shall. 

Stud.  Truth,  and  yet  there  be  many  great  diversities  be- 
twixt them  in  the  law. 

Doct.   I  pray  you  shew  me  some  of  these  diversities. 

Stud.  Part  I  shall  shew  thee,  but  I  wot  not  whether  I 
can  shew  thee  all.  But  first  thou  shalt  understand,  that  one 
diversity  is  this  :  Every  rent,  be  it  rent-service,  rent-charm-. 
or  rent-seek,  is  going  out  of  land,  but  chargeth  only  the 
person,  that  is  to  say,  the  grantor,  or  his  heirs  that  have 
assets  by  discent,  or  the  house,  if  it  be  granted  by  a  house 
oi  religion  to  perceive  of  their  coffers.  Also  of  an  annuity 
there  lieth  no  action,  but  only  a  writ  of  Annuity^  against 

*i  Lee.  144;  Pig,  on  Rec  97;  Sid.  285;  Carter,  52. 

t  Co.  Litt.  144;  Finch.  161  ;  3  Cro.  171. 


88  Doctor  and   Student. 

the  grantor,  his  heirs  or  successors  :  and  that  a  writ  of  An- 
nuity lieth  never  against  the  pernor,  but  only  against  the 
grantor  or  his  heirs.  But  of  a  rent  the  same  action  may 
lie  as  doth  of  land,  as  the  case  requireth  :  and  it  lieth  some- 
time of  rent  against  the  pernor  of  the  rent,  that  is  to  say, 
against  him  that  taketh  the  rent  wrongfully,  and  sometime 
against  neither,  as  of  a  rent-service  Assise  may  lie  for  the 
lord  against  the  mesne  and  the  disseisor,  or  sometime 
against  the  mesne  only,  if  he  did  also  the  disseisin.*  Also 
an  annuity  is  never  taken  for  assets,  because  it  is  no  free- 
hold in  the  law,  ne  it  shall  not  be  put  in  execution  upon  a 
statute-merchant,  statute-staple,  ne  Elegit,  as  a  rent  may. J 
And  because  the  said  writ  of  Entry  lay  not  in  this  case  of 
this  annuity, %  and  that  it  cannot  be  intended  in  the  law  to 
be  the  same  annuity,  though  it  be  of  like  sum  with  the  an- 
nuity, ne  though  the  parties  assented  and  meant  to  have  the 
same  annuity  recovered  by  the  said  writ  of  Entry ;  there- 
fore the  said  recovery  is  void  in  law  and  conscience.  But  if 
such  a  recovery  be  had  of  rent  with  the  voucher  over,  then 
it  shall  be  taken  to  be  of  like  effect  as  recoveries  of  lands 
be,  in  such  manner  as  we  have  treated  of  before. 

Chap.  XXXI. —  The  fifth   question   of  the  student,   con- 
cerning tailed  lands. 

If  lands  be  given  to  a  man  and  to  his  wife,  in  the  name 
of  her  jointure,  by  the  father  of  the  husband,  to  have  and 
to  hold  to  them,  and  to  the  heirs  of  their  two  bodies  begot- 
ten, and  after  they  have  issue,  and  the  husband  dieth,  and 

Br.  Assize,  pi.  330. 

fBr.  Assets  per  Descent,  pi.  26;  Br.  Execution,  pi.  144;   Co.  Litt.  374. 

J  The  reason  is,  because  an  annuity  cannot  be  intailed,  not  being  an  in- 
heritance within  the  statute  dc  douis-  In  the  case  of  the  Karl  of  Stafford 
and  Buckley,  2  Vez.  170,  Lord  Chief  Justice  llardwicke  held,  that  an  an- 
nuity in  fee  granted  by  the  crown  out  of  the  4.}  per  cent,  dut  es,  payable 
for  imports  and  exports  at  Barbadoes,  was  merely  a  personal  inheritance, 
and  not  intailable.  By  a  grant  therefore  of  an  annuity  to  the  man  and 
the  heirs  of  his  body,  he  has  only  a  fee  conditional  at  common  law,  and 
the  true  way  to  bar  the  heir  is  by  a  simple  law  conveyance,  viz:  by  grant 
or  release. 


Dialogue    I. — Chap.  31.  89 

the  wife  alieneth  the  land,  and  against  the  statute  of  11  II. 
7,*  suffereth  a  recovery  thereof  to  be  had  against  her,  to 
the  use  of  the  buyer,  and  after  her  son  and  heir  apparent, 
that  is  heir  to  the  tail,  releaseth  to  the  recoverers  by  fine, 
and  dieth,  having  a  brother  alive,  and  after  the  mother 
dieth  ;  who  hath  right  to  the  land,  the  buyer,  or  the  brother 
of  him  that  releaseth? 

Doct.  What  is  thine  opinion  therein?  I  pray  thee  shew 
me. 

Stud.  Me  seemeth  that  the  buyer  hath  right ;  for  by  the 
said  statute  made  in  the  nth  year  of  H.  7,f  among  other 
things  it  is  enacted,  that  if  any  woman  which  hath  lands 
of  the  gift  of  her  husband,  or  of  the  gift  of  any  of  the  an- 
cestors of  her  husband,  suffer  any  recovery  thereof  against 
her  by  covin,  that  then  such  recovery  shall  be  void,  and  that 
it  shall  be  lawful  to  him  that  should  have  the  land  after  the 
death  of  the  woman  to  enter,  and  it  to  hold  as  in  his  first 
right :  provided  alwav  that  that  statute  shall  not  extend 
where  he  that  should  have  the  land  after  the  death  of  the 
woman  is  agreeable  to  any  such  alienation  or  recovery,  sO 
that  the  agreement  be  of  record. %  And  forasmuch  as  the 
heir  in  this  case  agreed  to  the  said  recoverv  and  fine,  which 
is  one  of  the  highest  records  in  the  law,  it  seemelh  that  the 
buyer  hath  right  against  that  heir  that  agreed,  and  against 
all  that  shall  be  heir  of  the  tail  ;  and  that  not  only  by  the 
said  recovery,  but  also  by  the  said  statute,  whereby  the  said 
recovery,  with  assent  of  the  heir  is  affirmed. 

Doct.  Though  the  buyer  in  this  ease  have  right  during 
the  lite  of  the  heir  that  released,  yet  nevertheless  alter  his 
death  his  heir,  as  it  seemeth,  may  lawfully  enter:  for  the 
agreement  whereof  the  statute  speaketh,  must,  as  I  sup- 
pose, either  be  had  before  the  recovery,  or  else  at  the  time 
of  the  recovery.  For  if  a  tide  by  reason  o(  the  said 
ute  be  once  devolute  to  the  heir  in  the   tail,  then  the  right, 


*  C.  20. 

t  Piggot  on  Rec    77. 

J  3  Rep.  58:  Cruise  on  Pines,  34. 


90  Doctor  and  Student. 

as  me  seemeth,  cannot  be  extinct,  nor  put  away  by  the  only 
tine  of  the  heir,  no  more  than  if  he  had  died,  and  the  next 
heir  to  him  had  released  to  the  buyer  by  line,  in  which  case 
the  release  could  not  extinct  the  right  of  the  title,  nor  the 
right  of  entry  that  is  given  by  the  statute;  and  so,  as  me 
seemeth,  his  next  heir  may  therefore  enter. 

Stud.  As  I  perceive,  all  thy  doubt  is  in  this  case,  because 
the  assent  of  the  heir  was  after  the  recovery ;  for  if  it  had 
been  at  the  time  of  the  recovery,  as  if  the  heir  had  been 
vouched  to  warrant  in  the  same  recovery,  and  he  had  en- 
tered, and  thereupon  the  judgment  had  been  given,  thou 
agreest  well,  that  the  recovery  should  have  avoided  the  tail 
for  ever. 

Doct.  That  is  true,  for  it  is  in  express  words  of  the  stat- 
ute ;  but  when  the  assent  is  after  the  recovery,  then  me- 
thinketh  it  is  not  so,  ne  that  the  right  of  the  first  tail,  which 
was  revived  by  the  said  statute,  shall  not  be  extinct  by  his 
fine,  no  more  than  it  shall  in  other  tail. 

Stud.  I  will  be  advised  upon  thy  opinion  in  this  matter ; 
but  yet  one  thing  would  I  move  farther  upon  this  statute, 
and  that  is  this  :  Some  say,  that  by  this  statute  all  other  re- 
coveries that  have  been  had  over  beside  these  recoveries  of 
jointures  be  affirmed  ;  for  they  say,  thatsith  the  parliament, 
at  the  making  of  this  statute,  knew  well  that  many  other 
recoveries  were  then  used  and  had  to  defeat  tails,  that  it 
was  like  that  they  would  so  continue,  which  nevertheless 
the  parliament  did  not  prohibit  for  the  time  to  come,  as  it 
did  the  said  recoveries  of  jointures  ;  that  it  is  therefore  to 
suppose,  that  they  thought  that  they  should  stand  with  law 
and  conscience  :  but  because  jointures  were  made  rather 
for  the  saving  of  the  inheritance  of  the  husband  than  to  de- 
stroy  the  inheritance,  they  say  that  the  parliament  thought 
and  adjudged  the  alienations  and  recoveries  of  such  joint- 
ures to  be  against  the  law  and  conscience,  and  not  the  alien- 
ations of  other  lands  entailed  ;  for  if  the}'  had,  they  say 
that  the  parliament  would  have  avoided  recoveries  of  tailed 
lands  generally,  as  well  as  it  did  of  recoveries  of  jointures. 

Doct.   As  to  that  opinion  I  will  answer  thee  thus  for  this 


Dialogue   I. — Chap.   32. 


time:  That  though  that  the  makers  of  the  said  statute  only 
put  away  recoveries  of  jointures,  and  not  other  recoveries  ; 
that  yet  it  cannot  be  taken  therefore  that  their  intent  was 
that  the  other  recoveries  should  stand  good  and  perfect ;  for 
they  spake  then  only  of  jointures,  because  there  was  no 
complaint  made  in  the  parliament  at  that  time  but  against 
recoveries  had  of  jointures,  and  therefore  it  seemeth  that 
they  intended  nothing  concerning  other  recoveries,  but  that 
they  should  be  of  the  same  effect  as  they  were  before,  and 
no  otherwise.  And  that  will  appear  more  plainly  thus  : 
Though  the  makers  of  the  said  statute  intended  to  put  away 
and  annul  such  recoveries,  as  should  be  made  of  jointures 
after  a  certain  day  limited  in  the  statute,  that  yet  they  in- 
tended not  to  avoid  ne  affirm  such  recoveries  of  jointures 
as  were  passed  before  that  time;  and  if  they  intended  not 
to  avoid  ne  affirm  the  recoveries  had  of  jointures  before  that 
time,  then  how  can  it  be  taken  that  they  intended  to  put 
away  or  affirm  other  recoveries  that  were  passed  before  that 
time,  and  not  of  jointures,  that  would  not  affirm,  ne  put 
away  recoveries  passed  of  jointures  before  that  time?  And 
so,  as  it  seemeth,  they  intended  to  spare  the  multitude  of 
them  that  were  passed  of  both,  and  not  to  comfort  any  to 
take  them  after  that  time. 

Stud.  I  am  content  thy  opinion  stand  for  this  time,  and 
I  will  ask  thee  another  question. 

Chap.  XXXII. —  The  sixth  question   of  the  student \  con- 
cerning tailed  lauds. 

If  tenant  in  tail  be  disseised,  and  die,  and  an  ancestor 
collateral  to  the  heir  in  tail  release  with  a  warranty,  and 
■  I.e.  and  the  warranty  descendeth  upon  the  heir  in  the  tail  : 
whether  is  he  thereby  barred  in  conscience,  as  he  is  in 
the  law  ?* 

Doct.  Because  your  principal  intent  at  this  time  is  to 
speak  of  recoveries,    and    not    of  warranties,  ami    also    be- 

♦Post.  261  ;  Viner's  Al-r..  title  Tayle,  105;  2  B.  C.  303. 


92  Doctor  and   Student. 

cause  it  hath  been  of  long  time  taken  for  a  principal  maxim 
of  the  law,  that  it  should  be  a  bar  to  the  heirs  as  well  that 
claim  by  a  fee-simple  as  by  state-tail,  and  for  that  also  that 
it  was  not  put  away  by  the  said  stat.  of  Westm.  2,*  which 
ordained  the  tail  ;  I  will  not  at  this  time  make  thee  an  an- 
swer therein,  but  will  take  a  respite  to  be  advised. 

Stud.  Then,  I  pray  thee,  yet,  or  we  depart,  shew  me 
what  was  the  most  principal  cause  that  moved  thee  to  move 
this  question  of  recoveries  had  of  tailed  lands. 

Doct.  This  moved  me  thereto  :  I  have  perceived  many 
times  that  there  be  many  and  divers  opinions  of  these  re- 
coveries, whether  they  stand  with  conscience  or  not,  and 
that  it  is  to  doubt  that  many  persons  run  into.offence  of  con- 
science thereby  ;  and  therefore  I  thought  to  feel  thy  mind 
in  them,  whether  I  could  perceive  that  it  were  clear  that 
they  served  to  break  the  tail  in  law  and  conscience,  or  that 
it  were  clearly  against  conscience  so  to  break  the  tail,  or 
that  it  were  a  matter  in  doubt;  and  if  it  appeared  a  matter 
in  doubt,  or  that  it  appeared  that  the  matter  were  used 
clearly  against  conscience,  then  I  thought  to  do  somewhat 
to  make  the  matter  appear  as  it  is,  to  the  intent  that  they 
that  have  the  rule  and  charge  over  the  people,  as  well  the 
spiritual  men  as  temporal  men,  should  the  rather  endeavour 
them  to  see  it  reformed,  for  the  commonwealth  of  the  peo- 
ple, as  well  in  body  as  in  soul.  For  when  anything  is  used 
to  the  displeasure  of  God,  it  hurteth  not  only  the  body,  but 
also  the  soul  :  and  temporal  rulers  have  not  only  cure  of 
the  bodies,  but  also  of  the  souls,  and  shall  answer  for  them 
if  they  perish  in  their  default.  And  because  it  seemeth  \>y 
the  more  apparent  reason  that  the  tails  be  not  broken,  ne 
fully  avoided,  by  the  said  recoveries,  and  that  yet  neverthe- 
less the  great  multitude  of  them  that  be  passed  is  right 
much  to  be  pondered  :  therefore  it  were  very  good  to  pro- 
hibit them  for  time  to  come,  to  put  away  such  ambiguities 
and  doubts  as  arise  now  by  occasion  of  the  said  recoveries, 
and  so  they  be  put  as  snares  to  deceive  the  people,  and  so 

*  2  B.  C.  303.    See  stat.  4  and  5  Ann.,  c  16. 


Dialogue   I. — Chap.   32.  93 

will  they  be  as  long  as  they  be  suffered  to  continue.  And 
methinketh  verily  that  it  were  therefore  right  expedient, 
that  taiied  lands  should  from  henceforth  either  be  mad' 
strong  in  the  law  that  the  tail  should  not  be  broken  by  re- 
covery, fine  with  proclamation,  collateral  warranty,  nor 
otherwise;  or  else  that  all  tails  should  be  made  fee-simple, 
so  that  every  man  that  list  to  sell  his  land,  may  sell  it  by 
his  bare  feoffment,  and  without  any  scruple  or  grudge  of 
conscienee  :  and  then  there  should  not  be  so  great  expences 
in  the  law,  nor  so  great  variance  among  the  people,  ne  yet 
so  great  offence  of  conscience  as  there  is  now  in  many  per- 
sons. 

Stud.  Verily  methinketh  that  thy  opinion  is  right  good 
and  charitable  in  this  behalf,  and  that  the  rulers  be  bound 
in  conscience  to  look  upon  it,  to  see  it  reformed  and  brought 
into  good  order.  And  verily,  by  that  thou  hast  said  therein, 
thou  hast  brought  me  into  remembrance,  that  there  be  divers 
like  snares  concerning  spiritual  matters  suffered  among  the 
people,  whereby  I  doubt  that  many  spiritual  rulers  be  in 
great  offence  against  God.  As  it  is  of  the  point  that  spirit- 
ual men  have  spoke  so  much  of,  that  priests  should  not  be 
put  to  answer  before  laymen,  especially  of  felonies  and 
murders  ;*  and  of  the  statute  of  45  E.  3,  cap.  3,  where  it  is 
said  that  a  prohibition  shall  lie  where  a  man  is  sued  in  the 
spiritual  court  for  tithe  of  wood  that  is  above  the  age  of 
twenty  years,  by  the  name  of  Sylva  cccdua,  as  it  was  done 
before  ;f  and  they  have  in  open  sermons,  and  in  divers 
other  open  communications  and  counsels,  caused  it  to  be 
openty  notified  and  known,  that  they  should  be  all  accursed 
that  put  priests  to  answer,  or  that  maintain  the  said  estatute, 
or  any  other  like  to  it.  And  alter,  when  they  have  right 
well  perceived  that,  notwithstanding  all  that  they  have  done 
therein,  it  hath  been  used  in  the  same  points  through  ail  the 
realm  in  like  manner  as  it  was  before,  then   they  have  sat 

•This  point  is  fully  treated  upon  in  2  II.  I'.  C.  323, 324,  and  Hawkins  P. 
C  337,  where  the  reader  will  findby  what  means  the  benefit  of  clergy  was 
introduced,  how  it  stood  at  common  law,  and  how  it  stands  at  this  day. 

i  5  tnsl.  64J,  643;  12  Mod.  5^4;  Cro.  Eliz.  1. 


94 


Doctor   anmj   Student. 


still  and  let  the  matter  pass  ;  and  so  when  they  have  brought 
many  persons  in  great  danger,  but  most  specially  them  that 
have  given  credence  to  their  saying,  and  yet  by  reason  of 
the  old  custom  have  done  as  they  did  before,  then  there 
they  left  them.  But  verily  it  is  to  fear,  that  there  is  to 
themselves  right  great  offence  thereby,  that  is  to  say,  to  see 
so  many  in  so  great  danger  as  they  say  the}'  be,  and  to  do 
no  more  to  bring  them  out  of  it,  than  they  have  done  for  it. 
If  it  be  true,  as  they  say?  they  ought  to  stick  to  it  with  ef- 
fect in  all  charity,  till  it  were  reformed  :  and  if  be  not  as 
they  say,  then  they  have  caused  many  to  offend  that  have 
given  credence  to  them,  and  yet  contrary  to  their  own  con- 
science do  as  they  did  before,  and  that  percase  should  not 
have  offended  if  such  sayings  had  not  been.  And  so  it 
seemeth  that  they  have  in  these  matters  done  either  too 
much  or  too  little. 

And  I  beseech  Almighty  God,  that  some  good  man  may 
so  call  upon  all  these  matters  that  we  have  now  communed 
of,  so  that  they  that  be  in  authority  may  somewhat  ponder 
them,  and  to  order  them  in  such  manner,  that  offence  of 
conscience  grow  not  so  lightly  thereby  hereafter  as  it  hath 
done  in  times  past.  And  verily  He  that  on  the  cross  knew 
the  price  of  man's  soul,  will  hereafter  ask  a  right  strait 
accompt  of  rulers  for  every  soul  that  is  under  them,  and 
that  shall  perish  through  their  default. 

Thus  I  have  shewn  unto  thee,  in  this  little  dialogue,  how 
the  law  of  England  is  grounded  upon  the  law  of  reason  * 
the  law  of  God,  the  general  customs  of  the  realm,  and  upon 
certain  principles  that  be  called  maxims,  upon  the  particu- 
lar customs  used  in  divers  cities  and  countries,  and  upon 
statutes  which  have  been  made  in  divers  parliaments  bv 
our  sovereign  lord  the  king,  and  his  progenitors,  and  by 
the  lords  spiritual  and  temporal,  and  all  the  commons  of 
the  realm. f  And  I  have  also  shewed  thee  in  the  91I1 
chapter  of  .this  book,  under  what  manner  the  said  general 


Ante,  5,  7,  12,  15,  17,  25,34. 
t  Ante,  35. 


Dialogue    I. — Chap.  32.  gc; 

customs  and  maxims  of  the  law  may  be  proved  and  affirmed, 
if  they  were  denied  :*  and  divers  other  things  be  contained 
in  this  present  dialogue,  which  will  appear  in  the  table  that 
is  in  the  latter  end  in  the  book,  as  to  the  readers  will  appear. 
And  in  the  end  of  the  said  dialogue  I  have  at  thy  desire- 
shewed  thee  my  conceit  concerning  recoveries  of  tailed 
lands,  and  thou  hast  upon  the  said  recoveries  shewn  me 
thine  opinion.  And  I  beseech  our  Lord  set  them  shortly 
in  a  good  clear  way  :  for  surely  it  will  be  right  expedient 
for  the  well-ordering  of  conscience  in  many  persons,  that 
they  be  so.  And  thus  the  God  of  peace  and  love  be  alway 
with  us.     Amen. 

[Here  endeth  the  first  dialogue  in  English,  with  new  additions,  betwixt 
a  doctor  of  divinity  and  a  student  in  the  laws  of  England.  And  hereafter 
followeth  the  second.] 

*  Ante,  32. 


DIALOGUE    II. 


THE   PROLOGUE. 

In  the  beginning  of  this  dialogue  the  doctor  answereth 
to  certain  questions,  which  the  student  made  to  the  doctor 
before  the  making  of  his  dialogue  concerning  the  laws  of 
England  and  conscience,  as  appeareth  in  a  dialogue  made 
between  them  in  Latin  the  twenty-fourth  chapter.  And  he 
answereth  also  divers  other  questions,  that  the  student 
maketh  to  him  in  his  dialogue,  of  the  law  of  England  and 
conscience.  And  in  divers  other  chapters  of  this  present 
dialogue  is  touched  shortly,  how  the  laws  of  England  are 
to  be  observed  and  kept  in  this  realm,  as  to  temporal  things 
as  well  in  law  as  in  conscience,  before  any  other  laws.  And 
in  some  of  the  chapters  thereof  is  also  touched,  that  spiritual 
judges  in  divers  cases  be  bound  to  give  their  judgments 
according  to  the  king's  law.  And  in  the  latter  end  of  the 
book  the  doctor  moveth  divers  cases  concerning  the  laws 
of  England,  wherein  he  doubteth  how  they  may  stand  with 
conscience  ;  whereupon  the  student  maketh  answer  in  such 

manner  as  to  the  reader  will  appear. 

7  (97) 


THE   INTRODUCTION. 


Stud.  In  the  latter  end  of  our  first  dialogue  in  Latin,  I 
put  divers  cases  grounded  upon  the  laws  of  England, 
wherein  I  doubted,  and  yet  do,  what  is  to  be  holden  therein 
in  conscience.  But  forasmuch  as  the  time  was  then  far 
past,  I  shewed  thee  that  I  would  not  desire  thee  to  make 
answer  to  them  forthwith  at  that  time,  but  at  some  better 
leisure  ;  whereunto  thou  saidst  thou  wouldst  not  only  shew 
thine  opinion  in  these  cases,  but  also  in  such  other  cases  as 
I  would  put.  Wherefore  pray  thee  now  (forasmuch  as  me- 
thinketh  thou  hast  good  leisure)  that  thou  wilt  shew  me 
thine  opinion  therein. 

Doct.  I  will  with  good-will  accomplish  thy  desire ;  but  I 
would  that  when  I  am  in  doubt  what  the  law  of  this  realm 
is  in  such  cases  as  thou  shalt  put,  that  thou  wilt  shew  me 
what  the  law  is  therein  ;  for  though  I  have  by  occasion  of 
our  first  dialogue  in  Latin  learned  man}''  things  of  the  laws 
of  this  realm  which  I  knew  not  before,  yet  nevertheless, 
there  be  many  more  things  that  I  am  yet  ignorant  in,  and 
that  peradventure  in  these  self  cases  that  thou  hast  put,  and 
intendest  hereafter  to  put :  and,  as  I  said  in  the  first  dia- 
logue in  Latin  the  twentieth  chapter,  to  search  conscience 
(98) 


Dialogue  II.  99 

upon  any  case  of  the  law  it  is  in  vain,  but  where  the  law  in 
the  same  case  is  perfectly  known. 

Stud.  I  will  with  good-will  do  as  thou  sayest,  and  I  in- 
tend to  put  clivers  of  the  same  questions  that  be  in  the  last 
chapter  of  the  said  dialogue  in  Latin,  and  sometime  I  in- 
tend to  alter  some  of  them,  and  add  some  new  questions  to 
them  as  I  shall  be  most  in  doubt  of. 

Doct.  I  pray  thee  do  as  thou  sayest,  and  I  shall  with 
good-will  either  make  answer  to  them  forthwith  as  well  as 
I  can,  or  shall  take  longer  respite  to  be  advised,  or  else 
peradventure  agree  to  thine  opinion  therein,  as  I  shall  see 
cause.  But  first,  I  would  gladly  know  the  cause  why  thou 
hast  begun  this  dialogue  in  the  English  tongue,  and  not  in 
the  Latin  tongue,  as  the  first  cases  that  thou  desiredst  to 
know  mine  opinion  in,  be;  or  in  French,  as  the  substance 
of  the  law. 

Stud.  The  cause  is  this.  It  is  right  necessary  to  all  men 
in  this  realm,  both  spiritual  and  temporal,  for  the  good  or- 
dering of  their  conscience,  to  know  many  things  of  the  law 
of  England  that  they  be  ignorant  in.  And  though  it  had 
been  more  pleasant  to  them  that  be  learned  in  the  Latin 
tongue  to  have  had  it  in  Latin  rather  than  in  English  :  yet 
nevertheless,  forasmuch  as  many  can  read  English  that 
understand  no  Latin.,  and  some  that  cannot  read  English, 
by  hearing  it  read,  may  learn  clivers  things  by  it,  that  they 
should  not  have  learned  if  it  were  in  Latin  ;  therefore,  for 
the  profit  of  the  multitude,  it  is  put  into  the  English  tongue 
rather  than  into  the  Latin  or  French  tongue.  For  if  it  had 
been  in  French,  few  should  have  understood  it  but  they  that 
be  learned  in  the  law,  ami  they  have  least  need  ol  it;  for- 
asmuch as  they  know  the  law  in  the  same  cases  without  it, 
and  can  better  declare  what  conscience  will  thereupon  than 


ioo  Introduction. 


they  that  know  not  the  law  nothing  at  all.  To  them  there- 
fore that  be  not  learned  in  the  law  of  the  realm  this  treatise 
is  specially  made  :  for  thou  knowest  well  by  such  studies 
thou  hast  taken  to  some  knowledge  of  the  law  of  the  realm, 
that  is  to  them  most  expedient. 

Doct.  It  is  true  that  thou  sayest,  and  therefore  I  pray  thee 
now  proceed  to  thy  questions. 


DIALOGUE    II. 


Chap.  I. —  The  first  question  of  the  student. 

Stud.  If  tenant  in  tail  alter  possibility  of  issue  extinct  do 
waste,  whether  doth  he  thereby  offend  in  conscience,* 
though  he  be  not  punishable  of  waste  by  the  law? 

Doct.  Is  the  law  clear,  that  he  is  not  punishable  for  the 
waste  ?f 

Stud.  Yes,  verily. 

Doct.  And  what  is  the  law  of  tenants  for  term  of  life,  or 
for  term  of  years,  if  they  do  waste? 

Stud.  They  be  punishable  of  waste  by  the  statutes,  and 
shall  yield  treble  damages  ;{  but  at  the  Common  law  before 
the  statute  they  were  not  punishable. 

Doct.  But  whether  thinkest  thou  that  before  the  statute 
they  might  have  done  waste  with  conscience,  because  they 
were  not  punishable  by  the  law  ? 

Stud.  I  think  not,  lor,  as  I  take  it,  the  doing  of  waste  of 
such  particular  tenant  for  term  of  life,  lor  term  of  years,  or 
of  tenants  in  dower,  or  by  the  courtesy,  is  prohibited  by 
the  law  of  reason  ;  for  it  seemeth  of  reason,  that  when  such 
leases  be  made,  or  that  such  titles  in  dower,  or  by  the  cour- 
tesy be  given  hx  the  law,  that  there  is  only  given  unto  them 

s  Injunctions  have  been  frequently  granted  by  the  court  of  chancery, 
against  tenant  in  tail,  after  possibility  of  issue  extinct,  for  committing 
w  ilful  and  malicious  waste.  2  Frem.  Rep.  278  ;  1  Cases  in  Equity  abridged, 
400. 

t  Shep.  Touch.  145;   Co.  Litt.  2~. 

J  Post.  106. 


ioi  Doctor  and   Student. 

the  annual  profits  of  the  land,  and  not  the  houses  and  trees, 
and  the  gravel  to  dig  and  carry  away,  whereby  the  whole 
profit  of  them  in  the  reversion  should  be  taken  away  for 
ever.  And  therefore  at  the  Common  law,  for  waste  done 
by  tenant  in  dower,  or  tenant  by  the  courtesy,  there  was 
punishment  ordained  by  the  law  by  a  prohibition  of  waste,* 
whereby  they  should  have  yielded  damages  to  the  value  of 
the  waste.  But  against  tenant  for  term  of  life,  or  for  term 
of  years,  lay  no  such  prohibition,!  for  there  was  no  maxim 
in  the  law  therein  against  them,  as  there  was  against  the 
other.  And  I  think  the  cause  was,  forasmuch  as  it  was 
judged  a  folly  in  the  lessor  that  made  such  a  lease  for  term 
of  life,  or  for  term  of  years,  that  at  the  time  of  the  lease  he 
did  not  pro: libit  them,  they  should  not  do  waste  ;  and  sith  he 
did  not  provide  remedy  to  himself,  the  law  would  none 
provide.  But  yet  I  think  not  that  the  intent  of  the  law  was, 
that  they  might  lawfully  and  with  good  conscience  do  waste  ; 
but  against  tenants  in  dower,  and  by  the  courtesy,  the  law 
provided  remedy,  for  they  had  their  title  by  the  law. 

Doct.  And  verily  methinketh  that  this  tenant  in  tail,  as 
lo  the  doing  of  waste,  should  be  like  to  a  tenant  for  term 
of  life  \%  for  he  shall  have  the  land  no  longer  than  for  term 
of  his  life,  no  more  than  a  tenant  for  term  of  life  shall, 
and  the  waste  of  this  tenant  is  as  great  hurt  to  him  in  the 
reversion,  or  the  remainder,  as  is  the  waste  of  a  tenant  for 
term  of  life  ;  and  if  he  alien,  the  donor  shall  enter  for  the 
forfeiture,  as  he  shall  upon  the  alienation  of  a  tenant  for 
term  of  life  ;  and  if  he  make  default  in  a  Praicipc  quod 
rcddat,  the  donor  shall  be  received  as  he  shall  be  upon  the 
default  of  a  tenant  for  term  of  life ;  and  therefore  me- 
thinketh he  shall  also  be  punishable  of  waste,  as  tenant  for 
term  of  life  shall. 

Stud.  If  he  alien,  the  donor  shall  enter,  as  thou  sayest, 
because  the  alienation   is  to  his  disheritance, §  and  therefore 

Post.  114. 
tPost  106. 
I  Wood's  [nst.    122. 
§  Co.  Litt.  28. 


Dialogue   II. — Chap.  i.  103 

it  is  a  forfeiture  of  his  estate  :  and  that  is  by  an  ancient 
maxim  of  the  law,  that  giveth  that  forfeiture  in  the  self 
case  :  and  if  he  make  default  in  a  Precipe  quod  rcddat, 
he  in  the  reversion,  as  thou  sayest3  shall  be  received,  but 
that  is  bv  the  statute  of  Westminster  2,*  for  at  the  Common 
law  there  was  no  such  resceit.  And  as  for  the  statute  thai 
giveth  the  action  of  waste  against  a  tenant  for  term  of  life, 
and  for  term  of  }-ears,  it  is  a  statute  penal,  and  shall  not  be: 
taken  by  equity  :f  and  so  there  is  no  remedy  given  against 
him,  neither  by  Common  law  nor  by  statute,  as  there  is 
against  tenant  for  term  of  life,  and  therefore  he  is  unpunish- 
able of  waste  by  the  law. 

Doct  And  though  he  be  unpunishable  of  waste  by  the 
law,  yet  nevertheless  methinketh  he  may  not  by  conscience 
do  that  that  shall  be  hurtful  to  the  inheritance  after  histime, 
sith  he  hath  the  land  but  for  term  of  his  life,  no  more  than 
a  tenant  for  term  of  life  may,  for  then  he  should  do  as  he 
would  not  be  done  unto.J  For  thou  agreest  thyself,  that 
though  a  tenant  for  term  of  life  was  not  punishable  of  waste 
before  the  statute,  that  yet  the  law  judged  not  that  he  might 
rightfully  and  with  good  conscience  do  waste. §  And 
therefore  at  this  day,  if  a  feoffment  be  made  to  the  use  of 
man  for  term  of  life,  though  there  lie  no  action  against  him 
for  waste,  yet  he  offendeth  in  conscience  it  he  do  waste,  as 
tenant  for  term  of  life  did  afore  the  statute  when  no  remedy 
lay  against  him  by  the  law. 

Stud.  That  is  true  ;  but  there  is  great  diversity  between 
this  tenant  and  a  tenant  for  term  of  life  :  for  this  tenant 
hath  good  authority  by  the  donor  to  do  waste,  and  so  hath 
not  the  tenant  for  term  of  life,  as  it  is  said  before;   for  the 

2  Inst.  345. 

fThis  assertion  ot  the  student  is  too  general,  as  the  statute  referred  to. 
viz.,  the  stat.  of  Marlebridge,  is  a  remedial  law.  as  well  as  a  penal  one.  and 
has  had  an  equitable  construction.  For  instance,  although  the  words  in 
the  net  are  "shall  do  waste,"  which  literally  import  an  active  waste,  yet 
they  have  been  held  la  extend  to  waste  omittendo.  Hammond  :••  Webb, 
10  Mod.  2S2 

:  a  B.  C  125;  Co.  Litt.  27.  :S. 

§  Post.  106;   ante,  101  • 


104.  Doctor  and   Student. 

estate  of  a  tenant  in  tail  after  possibility  of  issue  extinct  is 
in  this  manner;*  when  lands  be  given  to  a  man  and  to  his 
wife,  and  to  the  heirs  of  their  two  bodies  begotten,  and 
after  the  one  of  them  dieth  without  heirs  of  their  bodies 
begotten,  then  he  or  she  that  overliveth  is  called  tenant  in 
tail  after  possibility  of  issue  extinct,  because  there  can  never 
by  no  possibility  be  any  heir  that  may  inherit  by  force  of 
the  gift.  And  thus  it  appeareth  that  the  donees  at  the  time 
of  the  gift  received  of  the  donor  an  estate  of  inheritance, 
which  by  possibility  might  have  continued  for  ever,  whereby 
they  had  power  to  cut  down  trees,  and  to  do  all  tilings 
that  is  waste,  as  tenant  in  fee-simple  might. f  And  that 
authority  was  as  strong  in  the  law,  as  if  the  lessor  that 
maketh  a  lease  for  term  of  life  say  by  express  words  in 
the  lease,  that  the  lessee  shall  not  be  punishable  of  waste. 
And  therefore  if  the  donor  in  this  case  had  granted  to  the 
donees  that  they  should  not  be  punishable  of  waste,  that 
grant  had  been  void,  because  it  was  included  in  the  gift  be- 
fore, as  it  should  be  upon  a  gift  in  fee-simple. i  And  so 
forasmuch  as  by  the  first  gift,  and  by  the  livery  of  seisin 
made  upon  the  same,  the  donees  had  authority  by  the  donor 
to  do  waste  ;  therefore  though  that  one  of  those  donees  be 
now  dead  without  issue,  so  that  it  is  certain  that  after  the 
death  of  the  other  the  land  shall  revert  to  the  donor ;  yet 
the  authority  that  they  had  by  the  donor  to  do  waste  con- 
tinueth  as  long  as  the  gift,  and  the  livery  of  seisin  made 
upon  the  same  continueth.  And  I  take  this  to  be  the  reason 
why  he  shall  not  have  in  aid,  as  tenant  for  term  of  life  shall, 
that  is  to  say,  for  that  he  cannot  ask  help  of  that  maxim, 
whereby  it  is  ordained  that  a  tenant  for  term  of  life  shall 
have  in  aid  :  for  he  cannot  say  but  that  he  took  a  greater 
estate  by  the  livery  of  seisin  that  was  made  to  him,  which 
yet  continueth,  than  for  term  of  life  :  and  so  I  think  him 
not  bound  to  make  any  restitution  to  him  in  the  reversion 
in  this  case  for  the  waste. 

Wood's  Inst.  122;  Litt.,  sec  32. 
t  1  Roll.  Rep-  179;  4  Rep.  63. 
J  2  New  Abr.  269. 


Dialogue   II. — Chap.   2.  105 


Doct.  Is  thy  mind  only  to  prove  that  this  tenant  is  not 
bound  to  make  restitution  to  him  in  the  reversion  for  the 
waste?  Or  that  thou  thinkest  that  he  may  with  clear  con- 
science do  all  manner  of  waste? 

Stud.  I  intend  to  prove  no  more  but  that  he  is  not  bound 
to  make  restitution  to  him  in  the  reversion. 

Doct.  Then  I  will  right  well  agree  to  thine  opinion,  for 
the  reason  that  thou  hast  made  ;  but  if  thy  mind  had  been 
to  have  proved  that  he  might  with  clear  conscience  have 
done  all  manner  of  waste,  I  would  have  thought  the  con- 
trary thereto,  and  that  the  tenant  in  fee-simple  may  not  do 
all  manner  of  waste  and  destruction  with  conscience,  as  to 
pull  down  houses,  and  make  pastures  of  cities  and  towns, 
or  to  do  such  other  acts  which  be  against  the  common- 
wealth. And  therefore  some  will  say,  that  tenant  in  fee- 
simple  may  not  with  conscience  destroy  his  woods  and  coal- 
pits, whereby  a  whole  country  for  their  mone}-  have  had 
fuel ;  and  yet  though  he  do  so,  he  is  not  bound  by  con- 
science to  make  restitution  to  no  person  in  certain.  But 
now  I  pray  thee,  ere  thou  proceed  to  the  second  case,  that 
thou  wilt  somewhat  shew  me  what  thou  meanest,  when  thou 
sayest,  at  the  Common  law  it  was  thus  or  thus.  I  under- 
stand not  fully  what  thou  meanest  by  that  term,  at  the 
Common  law. 

Stud.  I  shall  with  good-will  shew  thee  what  I  mean 
thereby. 

Chap.   II. —  What  is  meant  by  this  term,  when   it  is  said 
"  thus  it  was  at  the  Common  law" 

The  Common  law  is  taken  three  manner  of  ways.  First. 
it  is  taken  as  the  law  of  this  realm  of  England,  dissevered 
from  all  other  laws.  And  under  this  manner  taken  it  i> 
oftentimes  argued  in  the  laws  of  England,  what  matters 
ought  of  right  to  be  determined  by  the  Common  law,  and 
what  by  the  admiral's  court,  or  by  the  spiritual  court  :*  and 


*  See  Comvn's  Digest,  and  Bac    Abr.,  title  Prohibition. 


ic6  Doctor  and  Student.   ' 

also  if  an  obligation  bear  date  out  of  the  realm,  as  in  Spain, 
France,  or  such  other,  it  is  said  in  the  law,  and  truth  it  is, 
that  they  be  not  pleadable  at  the  Common  law.  *  Secondly, 
the  Common  law  is  taken  as  the  king's  courts,  of  his 
Bench,  or  of  the  Common  Place:  and  it  is  so  taken  when 
a  plea  is  removed  out  of  ancient  demesne,  for  that  the  land 
is  frank-fee,  and  pleadable  at  the  Common  law,  that  is  to 
say,  in  the  king's  court,  and  not  in  ancient  demesne. f  And 
under  this  manner  taken,  it  is  oftentimes  pleaded  also  in 
base  courts,  as  in  Courts-Barons,  the  County,  and  the  court 
of  Piepowders,  and  such  other,  this  matter  or  that,  etc., 
ought  not  to  be  determined  in  that  court,  but  at  the  Com- 
mon law,  that  is  to  say,  in  the  king's  courts,  etc.  Thirdly, 
by  the  Common  law  is  understood  such  things  as  were  law 
before  statute  made  in  that  point  that  is  in  question  ;  so  thai 
that  point  was  holden  for  law  by  the  general  or  particular 
customs  and  maxims  of  the  realm,  or  by  the  law  of  reason, 
and  the  law  of  God,  no  other  law  added  to  them  by  statute, 
nor  otherwise,  as  :s  the  case  before  rehearsed  in  the  first 
chapter,  where  it  is  said,  that  at  the  Common  law,  tenant 
by  the  courtesy  and  tenant  in  dower  were  punishable  of 
waste,'|  thai  is  to  say,  that,  before  any  statute  of  waste  made, 
they  were  punishable  of  waste  by  the  grounds  and  maxims 
of  the  law  used  before  the  statute  made  in  that  point.  §  But 
tenant  for  term  of  life,  ne  for  term  of  years,  were  not  pun- 
ishable by  the  said  grounds  and  maxims,  till  by  the  statute 
remedy  was  given  against  them  ;   and   therefore  it   is  said, 


•  But  if  a  bond  bears  date  out  of  the  realm,  and  is  laid  in  the  declaration 
fro  forma,  to  have  been  made  at  Madrid  in  Spain,  or  Bourdeaux  in  France, 
viz.,  in  London  in  parochia,  etc,  it  is  sufficient,  and  suable  in  the  king's 
courts.  Str.  614,  and  vide  the  case  of  Mostyn  v.  Fabrigas,  in  Cow.  Rep. 
161,  in  which  the  whole  learning  upon  this  point  seems  to  be  summed  up 
together. 

t  F.  N.  B.  13;  4  Inst.  270. 

%  2  Inst.  299;  ante,  103  ;  post.  114.  See  the  stat.  Marl.  5  II.  3,  c.  23,  and 
the  stat.  of  Gloucester,  6  Kdw.  1,  c  5. 

§  It  was  a  doubt  whether  tenant  by  the  courtesy  was  punishable  for  waste 
at  the  Common  law.     Reg.  72;  Bro.  Abr.,  title  Waste,  pi.  88;  2  Inst.  301. 


Dialogue   II. — Chap.  3.  107 

that   at  the  Common    law  they  were   not    punishable    of 
waste. 

Doct.  I  pray  thee  now  proceed  unto  the  second  ques- 
tion. 

Chap.   III. —  The  second  question  of  the  student. 

Stud.  If  a  man  be  outlawed,  and  never  had  knowledge 
of  the  suit,  whether  may  the  king  take  all  his  goods  and 
retain  them  in  conscience,  as  he  mav  bv  the  law? 

Doct.  What  is  the  reason  why  they  be  forfeited  by  the 
law  in  that  case? 

Stud.  The  very  reason  is,  for  that  it  is  an  old  custom, 
and  an  old  maxim  in  the  law,  that  he  that  is  outlawed  shall 
forfeit  his  goods  to  the  king  :*  and  the  cause  why  that 
maxim  began  was  this,  When  a  man  had  clone  a  trespass 
to  another,  or  another  offence  wherefore  process  of  out- 
lawry lay,f  and  he  that  the  offence  was  done  to  had  taken 
an  action  against  him  according  to  the  law,  if  he  had  ab- 
sented himself,  and  had  no  lands,  there  had  been  no  remedy 
against  him  :  for,  after  the  law  of  England  no  man  shall 
be  condemned  without  answer,  or  that  he  appear  and  will 
not  answer,  except  it  be  by  reason  of  any  statute.  There- 
fore, for  the  punishment  of  such  offenders  as  will  not  ap- 
pear to  make  answer,  and  to  be  justified  in  the  king's  courts, 
hath  been  used,  without  time  of  mind,  that  an  attachment 
in  that  case  should  be  directed  against  him  returnable  in  the 
Kings  Bench  or  the  Common  Place:  and  if  it  were  re- 
turned thereupon  that  he  had  nought  whereby  he  might 
be  attached,  that  then  should  go  forth  a  capias  to  take  his 
person,  and  after  an  alias  capias,  and  then  a  pluries ;%  and 
if  it  were  returned  upon   every  of  the  said  capias,  that  he 

The  student  may  here  be  supposed  to  speak  of  an  outlawry  in  a  perv 
sonal  action  ;  and  though   he  only  mentions  a   forfeiture  ol  -  the 

consequence  of  the  offence,  yet  the  outlawed    person  likewi  ts  the 

profits  of  his   land,  while  the  outlawry  continues   in  I  Show.  l'a. 

Ca.  73;  2  Roll.  Abr.  So6,  S07. 

t  See  where  and  in  what  eases  process  of  outlawry  lay  at  common  law, 
ami  where  it  lies  at  this  day,  in  3  Bae.  Abr.,  title  Outlawry. 

J  3  B.  C.  2S3. 


108  Doctor  and  Student. 

could  not  be  found,  and  he  appeared  not,  then  should  an 
exigent  be  directed  against  him,  which  should  have  so  long 
a  day  of  return,  that  five  counties*  might  be  holden  before 
the  return  thereof,  and  in  every  of  the  said  five  counties  the 
defendant  to  be  solemnly  called,  and  if  he  appeareth  not, 
then,  for  his  contumacy  and  disobedience  of  the  law,  the 
coroners  to  give  judgment  that  he  shall  be  outlawed, 
whereby  he  shall  forfeit  his  goods  to  the  king,  and  leese 
divers  other  advantages  in  the  law,  that  needeth  not  here 
to  be  remembered  now.  And  so  because  he  was  in  this 
case  called  according  to  the  law,  and  appeared  not,  it  seem- 
eth  that  the  king  hath  good  title  to  the  goods  both  in  law 
and  conscience. 

Doct.  If  he  had  knowledge  of  the  suit  in  very  deed,  it 
seemeth  the  king  hath  good  title  in  conscience,  as  thou 
sayeth.  But  if  he  had  no  knowledge  thereof,  it  seemeth 
not  so  ;  for  the  c'efault  that  is  adjudged  in  him  (as  appear- 
eth by  thine  own  reason)  is  his  contumacy  and  disobedience 
of  the  law,  and  if  he  were  ignorant  of  the  suit,  then  there 
can  be  assigned  to  him  no  disobedience,  for  a  disobedi- 
ence implieth  a  knowledge  of  that  he  should  have  obeyed 
unto. 

Stud.  It  seemeth  in  this  ca^e  that  he  should  be  compelled 
to  take  knowledge  of  this  suit  at  his  peril  :  for  sith  he  hath 
attempted  to  offend  the  law,  it  seemeth  reason  that  he  shall 
be  compelled  to  take  heed  what  the  law  will  do  against  him 
for  it ;  and  no:  only  that,  but  that  he  should  rather  offer 
amends  for  his  trespass,  than  lo  tarry  till  he  were  sued  for 
it.  And  so  it  seemeth  the  ignorance  of  the  suit  is  of  his 
own  default,  specially  sith  in  the  law  is  set  such  order  that 
every  man  may  know,  if  he  will,  what  suit  is  taken  against 
him,  and  may  see  the  records  thereof  when  he  will:  and 
so  it  seemeth  that  neither  the  party  nor  the  law  be  not 
bounden  to  give  him  no  knowledge  therein.  And  over  this 
I  would  somewhat  move  farther  in  this  matter  thus  :  that 
though  that   action   were  untrue,  and    the    defendant    not 

That  is,  five  county  courts.     2  Black.  Com.  285. 


Dialogue   II. — Chap.  3.  109 

guilty,  that  yet  the  goods  be  forfeited  to  the  king,  for  his 
not  appearance,  in  law,  and  also  in  conscience,  and  that 
for  this  cause  :  the  king,  as  sovereign  and  head  of  the  law, 
is  bounden  of  justice  to  grant  such  writs,  and  such  pro- 
cesses, as  be  appointed  in  the  law  to  every  person  that  will 
complain,  be  his  surmise  true  or  false;  and  thereupon  the 
king  (of  justice)  oweth  as  well  to  make  process  to  bring 
the  defendant  to  answer  when  he  is  not  guilty,  as  when  he 
is  guilty  :  and  then  when  there  is  a  maxim  in  the  law,  that 
if  a  man  be  outlawed,  in  such  manner  as  before  appeareth, 
that  he  shall  forfeit  all  his  goods  to  the  king,*  and  maketh 
no  exception  whether  the  action  be  true  or  untrue,  it  seem- 
eth  that  the  said  maxim  more  regardeth  the  general  minis- 
tration of  justice,  than  the  particular  right  of  the  party,  and 
therefore  the  property  by  the  outlawry,  and  by  the  said 
maxim  ordained  for  ministration  of  justice  is  altered,  and  is 
given  to  the  king,  as  before  appeareth,  and  that  both  in  law 
and  in  conscience,  as  well  as  if  the  action  were  true.  And 
then  the  party  that  is  so  outlawed  is  driven  to  sue  for  his 
remedy  against  him  that  hath  so  caused  him  to  be  outlawed 
upon  an  untrue  action. 

Doct.  If  he  hath  not  sufficient  to  make  him  recompence, 
or  die  before  recovery  can  be  had,  what  remedy  is  had 
then  ? 

Stud.  I  think  no  remedy  :  and  for  a  farther  declaration 
in  this  case,  and  in  such  other  like  cases,  where  the  prop- 
erty of  goods  may  be  altered  without  consent  of  the  owner, 
it  is  to  consider,  that  the  property  of  goods  is  not  given  to 
the  owners  directly  by  the  law  of  reason,  nor  by  the  law 
of  God,  but  by  the  law  of  man,  and  is  suffered  by  the  law 
of  reason,  and  by  the  law  of  God  so  to  be.  For  at  the  be- 
ginning all  goods  were  in  common,  but  after  they  were 
brought  by  the  law  of  man  into  a  certain  property,  so  that 
every  man  might  know  his  own  :f  and  then  when  such 
property  is  given  by  the  law  of  man,  the  same  law  may 

*  Ante,  107. 
t2B.  C  2,3. 


1 1 o  Doctor  and  Student. 

assign  such  conditions  upon  the  property  as  it  listeth,  so 
they  be  not  against  the  law  of  God,  ne  the  law  of  reason, 
and  may  lawfully  take  away  that  it  giveth,  and  appoint 
how  long  the  property  shall  continue.  And  one  condition 
that  goeth  with  every  property  in  this  realm,  is,  If  he  that 
hath  the  property  be  outlawed  according  to  such  process  as 
is  ordained  by  the  law,  that  lie  shall  forfeit  the  property 
unto  the  king.*  And  divers  other  cases  there  be  also, 
whereby  property  in  goods  shall  be  altered  in  the  law,  and 
the  right  in  lands  also,  without  assent  of  the  owner,  whereof 
I  shall  shortly  touch  some  without  saying  any  authority 
therein,  for  the  more  shortness. f  First,  By  a  sale  in  open 
market  the  property  is  altered.  Also  goods  stolen  and 
seised  for  the  king,  or  waived,  be  forfeit,  unless  appeal  or 
indictment  be  sued.J  Also  strays,  if  they  be  proclaimed, 
and  be  not  after  claimed  by  the  owner  within  the  year,  be 
forfeit ;  and  also  a  dcodand^  is  forfeit  (to  whomsoever  the 
property  was  before,  except  it  belonged  to  the  king)  and 
shall  be  disposed  for  the  soul  of  him  that  was  slain  there- 
with ;  and  a  fine  with  a  nonclaim  at  the  Common  law  was 
a  bar,  if  claim  were  not  made  within  a  year,  as  it  is  now  by 
statute  if  the  claim  be  not  made  within  five  years.  And  all 
these  forfeitures  were  ordained  by  the  law  upon  certain 
considerations,  which  I  omit  at  this  time  :  but  certain  it  is 
that  none  of  them  were  made  upon  a  better  consideration 
than  this  forfeiture  of  utlagary  was.  For  if  no  especial 
punishment  should  have  been  ordained  for  offenders  that 
would  absent  themselves,  and  not  appear  when  they  were 
sued  in  the  king's  courts,  many  suits  in  the  king's  courts 

*  Ante,  107. 

t  Post.   143. 

%  Finch-  Law,  212;    1  B.  C.  297;  Wood's  Inst.  212;   ante,  65. 

§  Dcodand  signifies  accidental  death,  which  happens  without  the  inter- 
vention of  human  means,  and  induces  a  forfeiture  which  was  formerly 
paid  into  the  hands  of  the  king's  almoner,  to  be  applied  to  pious  uses  fir 
the  soul  of  the  deceased.  But  good  sense  having  prevailed  over  ignoranc  ■ 
and  superstition,  it  is  not  now  applied  to  superstitious  uses,  but  remains 
part  of  the  revenue  of  the  crown,  unless  where  lords  of  franchises  are  in- 
titled  to  it  bv  grant.      Foster's  Crown  Law,  266. 


Dialogue   II. — Chap.   4.  11  1 

should  have  been  of  small  effect.  And  sith  this  maxim 
was  ordained  for  the  execution  of  justice,  and  as  much 
done  therein  by  the  common  law  as  policy  of  man  could 
reasonably  devise,  to  make  the  party  have  knowledge  of 
the  suit,  and  now  is  added  thereto  by  the  statute  made  the 
sixth  year  of  H.  VIII,*  that  a  writ  of  proclamation  shall 
be  sued  if  the  party  be  dwelling  in  another  shire  :  it  seem- 
eth  that  such  title,  as  is  given  to  the  king  thereby,  is  good 
in  conscience,  especially  seeing  that  the  king  is  bound  to 
make  process  upon  the  surmise  of  the  plaintiff,  and  may 
not  examine,  but  by  plea  of  the  party,  whether  the  surmise 
be  true  or  not.  But  if  the  party  be  returned  five  times 
called,  where  indeed  he  was  never  called  (as  in  the  second 
case  of  the  last  chapter  of  the  said  dialogue  in  Latin  is  con- 
tained), then  it  seemeth  the  party  shall  have  good  remedy 
by  petition  to  the  king,  specially  if  he  that  made  the  return 
be  not  sufficient  to  make  recompence,  or  die  before  re- 
covery can  be  had. 

Doct.  Now  sith  I  have  heard  thine  opinion  in  this  case, 
whereby  it  appeareth  that  many  things  must  be  seen,  or  a 
full  and  plain  declaration  can  be  made  in  this  behalf,  and 
seeing  also  that  the  plain  answer  to  this  case  shall  give  a 
great  light  to  divers  other  cases  that  may  come  by  such 
forfeiture  :  I  pray  thee  give  me  a  farther  respite  ere  that  I 
shew  thee  my  full  opinion  therein,  and  hereafter  I  shall 
right  gladly  do  it.  And  therefore  I  pray  thee,  proceed 
now  to  some  other  case. 

Chap.   IV. — 'The  third  question  of  the  student. 

Stud.  If  a  stranger  do  waste  in  lands  that  another  hold- 
eth  for  term  of  life,  without  assent  of  the  tenant  for  term  of 
1  e,  whether  may  he  in  the  reversion  recover  treble  dam- 
ages, and  the  place  wasted,  against  the  tenant  for  term  of 
liic,  according  to  the  statute,  in  conscience,  as  he   may  bv 

*  Cap.  4,  to  which  may  likewise  be  added  the  statute  31  Eliz.,  c.  3. 


112  Doctor  and  Student. 

the  law,  if  the  stranger  be  not  sufficient  to  make  recom- 
pence  for  the  waste  done  ?* 

Doct.  Is  the  law  clear  in  this  case,  that  he  in  the  rever- 
sion shall  recover  against  the  tenant  for  term  of  life,  though 
that  he  assented  not  to  the  doing  of  waste  ? 

Stud.  Yea  verily  ;  and  yet  if  the  tenant  for  term  of  life 
had  been  bounden  in  an  obligation  in  a  certain  sum  of 
money,  that  he  should  do  no  waste,  he  should  not  forfeit 
his  bond  by  waste  of  a  stranger.  And  the  diversity  is  this. 
It  has  been  used  as  an  ancient  maxim  of  the  law,  that 
tenant  by  the  courtesy  and  tenant  in  dower  should  take  the 
land  with  this  charge, f  that  is  to  say,  that  they  should  do 
no  waste  themselves,  nor  suffer  none  to  be  done  :  and  when 
an  action  of  waste  was  given  after  against  a  tenant  for  term 
of  life,  then  he  was  taken  to  be  in  the  same  case,  as  to  the 
point  of  waste,  as  tenant  by  the  courtesy  and  tenant  in 
dower  was, J  that  is  to  say,  that  he  shall  do  no  waste,  nor 
suffer  none  to  be  done  ;  for  there  is  another  maxim  in  the 
law  of  England,  that  all  cases  like  unto  other  cases  shall 
be  judged  after  the  same  law  as  other  cases  be  :  and  sith 
no  reason  of  diversity  can  be  assigned  why  the  tenant  for 
term  of  life,  after  an  action  of  waste  was  given  against  him, 
should  have  any  more  favour  in  the  law  than  the  tenant  by 
the  courtesy  or  tenant  in  dower  should  ;  therefore  he  is  put 
under  the  same  maxim  as  they  be,  that  is  to  say,  that  he 
shall  do  no  waste,  ne  suffer  none  to  be  done.  And  so  it 
seemeth  that  the  law  in  this  case  doth  not  consider  the  ability 
of  the  person  that  doth  the  waste,  whether  he  be  able  to 
make  recompence  for  the  waste  or  not,  but  the  assent  of  the 
said  tenants,  whereby  they  have  wilfully  taken  upon  them 
the  charge  to  see  that  no  waste  shall  be  done. 

Doct.  I  have  heard  that  if  houses  of  these  tenants  be  de- 
stroyed with  sudden  tempest,  or  with  strange  enemies,  that 
they  shall  not  be  charged  with  waste.  § 

*2  Inst.  306;   ante,  101. 

T3  Cro.  420. 

\  Ante,  102. 

§Co.  Litt.  53  ;   Noy's  Max.  16;   2  Inst.  303. 


Dialogue    II. — Chap.  4.  113 

Stud.  Truth  it  is. 

Doct.  And  I  think  the  reason  is,  because  they  can  have 
no  recovery  over. 

Stud.  I  take  not  that  for  the  reason,  but  that  it  is  an  old 
reasonable  maxim  in  the  law,  that  they  should  be  dis- 
charged in  these  cases.  Howbeit  some  will  say,  that  in 
these  cases  the  law  of  reason  doth  discharge  them  :  and 
therefore  they  say,  that  if  a  statute  were  made  that  they 
should  be  charged  in  these  cases  of  waste,  that  the  statute 
were  against  reason,  and  not  to  be  observed.  But  yet  never- 
theless I  take  it  not  so  ;  for  they  might  refuse  to  take  such 
estate  if  they  would,  and  if  they  will  take  the  estate  after 
the  law  made,  it  seemeth  reasonable  that  they  take  it  with 
the  charge,  and  with  the  condition  that  is  appointed  thereto 
by  the  law,  though  hurt  might  follow  to  them  afterward 
thereby.  For  it  is  oftentimes  seen  in  the  law,  that  the  law 
doth  suffer  him  to  have  hurt  without  help  of  the  law  that 
will  wilfully  run  into  it  of  his  own  act,  not  compelled 
thereto,  and  judgeth  it  his  foil}''  so  to  run  into  it;  for  which 
folly  he  shall  also  be  many  times  without  remedy  in  con- 
science. As  if  a  man  take  land  for  term  of  life,  and  bindeth 
himself  by  obligation  that  he  shall  leave  the  land  in  as  good 
case  as  he  found  it  ;*  if  the  houses  be  alter  blown  down 
with  tempest,  or  destroyed  with  strange  enemies,  as  in  the 
case  that  thou  hast  put  before,  he  shall  be  bound  to  repair 
them,  or  else  he  shall  forfeit  his  obligation  in  law  and 
conscience  :  because  it  is  his  own  act  to  bind  him  to  it, 
and  yet  the  law  would  not  have  bound  him  thereto,  as  thou 
hast  said  before.  So  methinketh  that  the  cause  why  the 
said  tenants  be  discharged  in  the  law  in  .m  action  of  waste, 
when  the  houses  be  destroyed  by  sudden  tempest,  or  by 
strange  enemies,  is  by  a  special  reasonable  maxim  in  the 
law,  whereby  they  be  excepted  from  the  other  general 
bond  before  rehearsed,  that  is  to  say.  they  shall  at  their 
peril  see  that  no  waste  shall  be  done,  and  not  by  the  law  of 

*  Noy's  Max.  16. 


114  Doctor   and  Student. 

reason  :  and  sith  there  is  no  maxim  in  this  case  to  help  this 
tenant,  ne  that  he  cannot  be  holpen  by  the  law  of  reason, 
it  seemeth  that  he  should  be  charged  in  this  case  by  his 
own  act  both  in  law  and  conscience,  whether  the  stranger 
be  able  to  recompence  him  or  not. 

Doct.  I  doubt  in  this  case  whether  the  maxim  that  thou 
speakest  of  be  reasonable  or  not,  that  is  to  say,  that  tenants 
by  the  courtesy,  and  tenants  in  dower,  were  bound  by  the 
common  law,  that  they  should  do  no  waste  themselves,  and 
over  that  at  their  peril  to  see  that  no  waste  should  be  done 
by  none  other.*  For  that  law  seemeth  not  reasonable  that 
bindeth  a  man  to  an  impossibility  :|  and  it  is  impossible  to 
prevent  that  no  waste  should  be  clone  by  strangers  :  for  it 
may  be  suddenly  done  in  the  night,  that  the  tenants  can 
have  no  notice  of,  or  by  great  power,  that  they  be  not  able 
to  resist :  and  therefore  methinketh  they  ought  not  to  be 
charged  in  those  cases  for  the  waste  without  they  may  have 
good  remedy  over  ;  and  then  percase  the  said  maxim  were 
sufterable,  and  else  methinketh  it  is  a  maxim  against 
reason. 

Stud.  As  I  have  said  before,  no  man  shall  be  compelled 
to  take  the  bond  upon  him,  but  he  that  will  take  the  land  ; 
and  if  he  will  take  the  land,  it  is  reason  he  take  the  charge, 
as  the  law  hath  appointed  it  :i  and  then  if  an)7  hurt  grow  to 
him  thereby,  it  is  through  his  own  act,  and  his  own  assent, 
for  he  might  have  refused  the  lease  if  he  would. § 

Doct.  Though  a  man  may  refuse  to  take  estate  for  term 
of  life,  or  for  term  of  years,  and  a  woman  may  refuse  to 
take  her  dower  ;  yet  tenant  by  the  courtesy  cannot  refuse  to 
take  his  estate,  tor  immediately  after  the  death  of  his  wife 
the  possession  abideth  still  in  him  by  the  act  of  the  law, 
without  entry  :  and  then  I  put  the  case,  that  alter  the  death 
of  his  wife  he  would  waive  the  possession,  and  after  waste 

*2  Inst.  145;  3  Cro.  430;  Co.  Litt.  54;   ante,  xo6. 
t  Lex  cogit  neminem  ad  vana  aut  impossibilia.     5  Rep.  21. 
J  Agreeable   to  the  maxim,  Qui  sentit  commodum,  debet  sctitire  incom' 
modum  s/'ve  onus. 
§  Post.  260. 


Dialogue    II. — Chap.    5.  115 

were  done  by  a  stranger,  whether  thinkest  thou  that  he 
should  answer  to  the  waste? 

Stud.   I  think  he  should  by  the  law. 

Doct.  And  how  standeth  that  with  reason,  seeing  there 
is  no  default  in  him  ? 

Stud.  It  was  his  default,  and  at  his  own  peril,  that  he 
would  marry  an  inheritrix,  whereupon  such  danger  might 
follow. 

Doct.  I  put  the  case  that  he  were  within  age  at  the  mar- 
riage, or  that  the  land  descended  to  his  wife  after  he  married 
her. 

Stud.  There  thou  movest  a  farther  doubt  than  the  first 
question  is  :  and  though  it  were  as  thou  sayest,  yet  thou  canst 
not  say  but  that  there  is  as  great  default  in  him,  as  in  him 
in  the  reversion  ;  and  that  there  is  as  great  reason  why  he 
should  be  charged  with  the  waste,  as  that  he  in  the  rever- 
sion should  be  disinherited,  and  have  no  manner  of  remedy, 
ne  yet  no  profit  of  the  land,  as  the  other  hath.  And  though 
the  said  maxim  may  be  thought  very  strait  to  the  said  ten- 
ants ;  yet  it  is  to  be  favoured  as  much  as  may  be  reasonably, 
because  it  helpeth  much  the  commonwealth  ;  for  it  hurteth 
the  commonwealth  greatly  when  woods  and  houses  be  de- 
stroyed ;  and  if  they  should  answer  for  no  waste,  but  for 
waste  done  by  themselves,  there  might  be  wastes  done  by 
strangers  b)'  commandment  or  assent,  in  such  colourable 
manner,  that  they  in  the  reversion  should  never  have  proof 
of  their  assent. 

Doct.  I  am  content  thine  opinion  stand  for  this  time,  and 
I  pray  thee  now  proceed  to  another  question. 

Chap.  V. —  The  fourth  question  of  the  student. 

Stud.  If  he  that  is  the  very  heir  be  certified  by  the  or- 
dinary, bastard,  and  after  bring  an  action  as  heir  against 
another  person  :  whether  ma  '  any  man,  knowing  the  truth, 
be  of  counsel  with  the  tenant,  and  plead  the  said  certificate 
against  the  demandant  bv  conscience  or  not? 


1 1 6  Doctor  and  Student. 

Doct.  Is  the  law  in  this  case,  that  all  other  against  whom 
the  demandant  hath  title  shall  take  advantage  of  this  cer- 
tificate, as  well  as  he  at  whose  suit  he  is  certified  bastard? 

Stud.  Yea  verily,  and  thai  for  two  causes,  whereof  the 
one  is  this.  There  is  an  old  maxim  in  the  law,  that  a 
mischief  shall  be  rather  suffered  than  an  inconvenience  :* 
and  then  in  this  case  if  another  writ  should  afterward  be 
sent  to  another  bishop  in  another  action,  to  certify  whethe. 
he  were  a  bastard  or  not :  peradventure  the  bishop  "would 
certify  that  he  were  mulic?',  that  is  to  say,  lawfully  begot- 
ten, and  then  he  should  recover  as  heir:  and  so  he  should 
in  one  self  court  be  taken  as  mulic?'  and  bastard,  f  For 
avoiding  of  which  contrariosity,  the  law  will  suffer  no  more 
writs  to  go  forth  in  that  case,  and  suftereth  also  all  men  to 
take  advantage  of  the  certificate,  rather  than  to  suffer  such 
a  contradiction  in  the  court,  which  in  the  law  is  called  an 
inconvenience. J  And  the  other  cause  is,  because  this 
certificate  of  the  bishop  is  the  highest  trial  that  is  in  the 
law  in  this  behali :  but  this  is  not  understood  but  where 
bastardy  is  laid  in  one  that  is  party  to  the  writ;§  ior  if 
bastardy  be  laid  in  one  that  is  a  stranger  to  the  writ,  as  if 
vouchee  pray  in  aid  for  such  other,  then  that  bastardy  shall 
be  tried  by  twelve  men,  by  which  trial  he  in  whom  the 
bastardy  is  laid  shall  not  be  concluded,  because  he  is  not 
privy  to  the  trial,  and  may  have  no  attaint;  but  he  that  is 
party  to  the  issue  may  have  attaint,  and  therefore  he  shall 
be  concluded,  and  none  other  but  he.  And  forasmuch  as 
the  said  maxim  was  ordained  to  eschew  an  inconvenience 
(as  before  appeareth)  it  seemeth  that  every  man  "learned 
may  with  conscience  plead  the  said  certificate  lor  avoiding 
thereof,  and  give  counsel  therein  to  the  party  according 
unto  the  law,  or  else  the  said  inconvenience  must  needs 
follow.     But  yet  nevertheless  I  do  not  mean  thereby,  that 


»  Wood's  Inst.  5. 

f  1  Roll.  Abr.  361,  362. 

%  1  Danv.  Abr.  732. 

§  1  Burn's  Ecc  Law,  119. 


Dialogue   II. — Chap.  5.  117 

the  party  may  after,  when  he  hath  barred  the  demandant 
by  the  said  certificate,  retain  the  land  in  conscience  by 
reason  of  the  said  certificate  :  for  though  there  be  no  law  to 
compel  him  to  restore  it,  yet  I  think  well  that  he  in  con- 
science is  bound  to  restore  it,  if  he  knew  that  the  demand- 
ant is  the  very  true  heir,  whereof  I  have  put  divers  cases 
like  in  the  seventeenth  chapter  of  our  first  dialogue  in 
Latin.*  But  my  intent  is,  that  a  man  learned  in  the  law, 
in  this  case,  and  other  like,  may  with  conscience  give  his 
counsel  according  to  the  law,  in  avoiding  of  such  things  as 
the  law  thinketh  should  for  a  reasonable  cause  be  eschewed. 
Doct.  Though  he  that  doth  not  know  whether  he  be  a 
bastard  or  not  may  give  his  counsel,  and  also  plead  the 
said  certificate;  yet  I  think  that  he  that  doth  know  himself 
to  be  the  very  true  heir  ma}'  not  plead  it:  and  that  is  for 
two  causes,  whereof  the  one  is  this  :  every  man  is  bound 
by  the  law  of  reason  to  do  as  he  would  be  done  to  :f  but  I 
think  that  if  he  that  pleadeth  that  certificate  were  in  like 
case,  he  would  think  that  no  man,  knowing  the  certilicate 
to  be  untrue,  might  with  conscience  plead  it  against 
him,  wherefore  no  more  may  he  plead  it  against  none 
other.  The  other  cause  is  this  :  Although  the  certificate 
be  pleaded,  yet  is  the  tenant  bounden  in  conscience  to 
make  restitution  thereof,  as  thou  hast  said  thyself;  and 
then  in  case  that  he  would  not  make  restitution,  then  he 
that  pleadeth  the  plea  should  run  thereby  in  Ike  offence, 
for  he  hath  holpen  to  set  the  other  man  in  such  a  liberty, 
that  he  may  chuse  whether  he  will  restore  the  land  or  not; 
and  so  he  should  put  himself  to  jeopardy  of  another  man's 
conscience.  And  it  is  written,  Eccl.  3,  £%ui a  mat  -periculum 
peril)//  in  illo,  that  is,  lie  that  wilfully  will  put  himself  in 
jeopardy  to  offend,  shall  perish  therein.  And  therefore  it 
is  the  surest  way,  to  eschew  perils,  for  him  that  knoweth 
that  he  is  heir,  not  to  plead  it.  And  as  for  the  incon- 
venience   that   thou    sayest    must    needs    follow,    but    the 

;:  Ante,  47. 
fPost.  119. 


1 1  3  Doctor  and  Student. 

certificate  be  pleaded  ;  as  to  that  it  may  be  answered,  that 
it  may  be  pleaded  by  some  other  that  knoweth  not  that  he 
is  very  heir  :  and  if  the  case  be  so  far  put,  that  there  is 
none  other  learned  there  but  he,  then  methinketh  that  he 
shall  rather  suffer  the  said  inconvenience,  than  to  hurt  his 
own  conscience  ;  for  always  charity  beginneth  at  himself, 
and  so  every  man  ought  to  suffer  all  other  offences  rather 
than  himself  would  offend.  And  now  that  thou  knowest 
mine  opinion  in  this  case,  I  pray  thee  proceed  to  another 
question. 

Chap.  VI. —  The  fifth  question  of  the  student. 

Stud.  Whether  may  a  man  with  conscience  be  of  counsel 
with  the  plaintiff  in  action  at  the  common  law,  knowing 
that  the  defendant  hath  sufficient  matter  in  conscience 
whereby  he  may  be  discharged  by  a  subpoena  in  the  chan- 
cery, which  he  cannot  plead  at  the  common  law,  or  not? 

Doct.  I  pray  thee  put  a  case  thereof  in  certain,  for  else 
the  question  is  very  general. 

Stud.  I  will  put  the  same  case  that  thou  puttest  in  our 
first  dialogue  in  Latin,  the  twelfth  chapter,  that  is  to  say, 
If  a  man  bound  in  an  obligation  pay  the  money,  and  taketh 
no  acquittance,  so  that  by  the  common  law  he  shall  be 
compelled  to  pay  the  money  again,*  for  such  consideration 
as  appeareth  in  the  fifteenth  chapter  of  the  said  dialogue 
where  it  is  shewed  evidently  how  the  law  in  that  case  is 
made  upon  a  good  reasonable  ground,  much  necessary  for 
all  the  people,  howbeit  that  a  man  may  sometime,  through 
his  own  default,  take  hurt  thereby  :  herein  I  pray  thee  shew 
me  thine  opinion. 

Doct.  This  case  seemeth  to  be  like  to  the  case  that  thou 
hast  next  before  this, J  and  that  he  that  knoweth  the  pay- 
ment to  be  made  doth  not  as  he  would  be  done  to,  if  he 


*  Ante,  37. 
f  Ante,  115. 


Dialogue   II. — Chap.   6. 


119 


gave  counsel  that  an  action  should  be  taken  to  have  it  payed 
again. 

.Stud.  li  he  be  sworn  to  give  counsel  according  to  the 
law,*  as  Serjeants  at  the  law  be,  it  seemeth  he  is  bound  to 
give  counsel  according  to  the  law,  for  else  he  should  not 
perform  his  oath. 

Doct.  In  these  words  (according  to  the  law)  is  under- 
stood the  law  of  God,  and  the  law  of  reason,  as  well  as  the 
law  and  customs  of  the  realm  :  for  as  thou  hast  said  thy- 
self, in  our  first  dialogue  in  Latin, \  that  the  law  of  God, 
and  the  law  of  reason,  be  two  special  grounds  of  the  laws 
of  England,  wherefore  (as  methinketh)  he  may  give  no 
counsel  (saving  his  oath)  neither  against  the  law  of  God, 
nor  the  law  of  reason.  And  certain  it  is,  that  this  article, 
that  is  to  say,  that  a  man  shall  do  as  he  would  be  done  to, 
is  grounded  upon  both  the  said  laws.  And  first  that  it  is 
grounded  upon  the  law  of  reason,  it  is  evident  of  itself. 
And  in  the  sixth  chapter  of  St.  Luke  it  is  said,  Et  -prout 
vultis  ut  faciant  rob  is  homines,  ct  vosfacite  illis  similiter; 
that  is  to  say,  All  that  other  men  should  do  to  you,  do  you 
to-  them  \%  and  so  it  is  grounded  upon  the  law  of  God. 
Wherefore  if  he  should  give  counsel  against  the  defendant 
in  that  case,  he  should  do  against  both  the  said  laws. 

Stud.  If  the  defendant  had  no  other  remedy  but  the  com- 
mon law,  I  would  agree  well  it  were  as  thou  sayest,  but  in 
this  case  he  may  have  good  remedy  by  a  subpecua:  and 
this  is  the  way  that  shall  induce  him  directly  to  his  subpoena , 
that  is  to  say,  when  it  appeareth  that  the  plaintiff  shall  re- 
cover by  law. 

Doct.  Though  the  defendant  may  be  discharged  by  sub- 
fia-iKi,  yet  the  bringing  in  of  his  prools  there  will  be  to  the 
charge  of  the  defendant,  and  also  the  proofs  may  die  or 
they  come  in.  Also  there  is  a  ground  in  the  law  of  rea- 
son, Jejuni  nihil  -possimus  contra  veritatem,  (that  is)  We 


2  Inst.  214. 
f  Ante,  5,  7. 
J  Ante,  7 17. 


120  Doctor  and   Student. 

may  do  nothing  against  the  truth  ;  and  sith  he  knoweth  it 
is  truth  that  the  money  is  payed,  he  may  do  nothing  against 
the  truth  ;  and  if  he  should  be  of  counsel  with  the  plaint- 
iff, he  must  suppose  and  aver  that  it  is  the  very  due  debt  of 
the  plaintiff,  and  that  the  defendant  with-holdeth  it  from 
him  unlawfully,  which  he  knoweth  himself  to  be  untrue  : 
wherefore  he  may  not  with  conscience  in  this  case  be  of 
counsel  with  the  plaintiff,  knowing  that  the  plaintiff  is  paid 
already.  Wherefore  if  thou  be  contented  with  this  answer, 
I  pray  thee  proceed  to  some  other  question. 
Stud.   I  will  with  good-will. 

Chap.  VII. —  The  sixth  question  of  the  student. 

A  man  maketh  a  feoffment  to  the  use  of  him  and  of  his 
heirs,  and  after  the  feoffor  putteth  in  his  beasts  to  manure 
the  ground,  and  the  feoffee  taketh  them  as  damage-feasant, 
and  putteth  them  in  pound,  and  the  teoffor  bringeth  an  ac- 
tion of  trespass  against  him  for  entering  into  his  ground, 
etc.  Whether  may  any  man,  knowing  the  said  use,  be  of 
counsel  with  the  feoffee  to  avoid  the  action  ? 

Doct.  May  he  by  the  common  law  avoid  that  action, 
seeing  that  the  feoffor  ought  in  consicience  to  have  the 
profits? 

Stud.  Yes,  verily  ;  for  as  to  the  common  law  the  whole 
interest  is  in  the  feoffee,*  and  if  the  feoffee  will  break  his 
conscience,  and  take  the  profits,  the  feoffor  hath  no  remedy 
by  the  common  law,  but  is  driven  in  that  case  to  sue  for  his 
remedy  by  subpoena  for  the  profits,  and  to  cause  him  to  en- 
feoff him  again  :f  and  that  was  sometime  the  most  common 
case  where  the  subpoena  was  sued,  that  is  to  say,  before  the 
statute  of  R.  3.  but  sith  the  statute,  the  feoffor  may  lawfully 
make  a  feoffment. %  But  nevertheless,  for  the  profits  re- 
ceived, the  feoffor  hath  yet  no  remedy  but  by  subpoena  as 
he  had  before  the  said  statute.     And  so  the  supposal  of  this 

*  See  note,  p.  58. 

r  Wood's  Inst.  256;  Kelw.  42,  b. ;   1  Rep.  121. 

*  Ciodbolt,  303;   Gilbert,  Law  of  Uses,  27. 


Dialogue    II. — Chap.  7.  '  121 


action  of  trespass  is  untrue  in  every  point  as  to  the  common 
law. 

Doct.  Though  the  action  be  untrue  as  to  the  law,  yet  he 
that  sueth  it  ought  in  conscience  to  have  that  he  demandeth 
by  the  action,  that  is  to  say,  Damages  for  his  profits;  and 
as  it  seemeth,  no  man  may  with  conscience  give  counsel 
against  that  he  knoweth  conscience  would  have  done. 

Stud.  Though  conscience  would  he  should  have  the 
profits,  yet  conscience  will  not  that  for  the  attaining  thereof 
the  feoffor  should  make  an  untrue  surmise.  Therefore 
against  the  untrue  surmise  every  man  may  with  conscience 
give  his  counsel ;  for  in  that  doing  he  resisteth  not  the 
plaintiff  to  have  the  profits,  but  he  withstandeth  him  that  he 
should  not  maintain  an  untrue  action  for  the  profits.  And 
it  sufficeth  not  in  the  law,  ne  yet  in  conscience,  as  me 
seemeth,  that  a  man  have  right  to  that  he  sueth  for,  but  that 
also  he  sue  by  a  just  means,  and  that  he  have  both  good 
right,  and  also  a  good  and  true  conveyance  to  come  to  his 
right.  For  if  a  man  have  a  right  to  lands  as  heir  to  his 
lather,  and  he  will  bring  an  action  as  heir  to  his  mother, 
that  never  had  right,  every  man  may  give  counsel  against 
the  action,  though  he  know  he  have  right  by  another  means  ; 
and  so,  as  methinketh,  he  may  do  in  dilatories,  whereby 
the  party  may  take  hurt  if  it  were  not  pleaded,  though  he 
know  the  plaintiff  have  right;  as  if  the  party  or  the  town 
be  misnamed,  or  if  the  degrees  in  writs  of  Entry  be  mis- 
taken ;  but  if  the  party  should  take  no  hurt  by  admitting 
of  a  dilatory,  there  he  that  knoweth  that  the  plaintiff  hath 
right,  may  not  plead  that  dilatory  with  conscience.  As  in 
a  Formedon  to  plead  in  abatement  of  the  writ,  because  he 
hath  not  made  himself  heir  to  him  thai  was  the  last  seised  ;* 
for  in  a  writ  of  right,  for  that  the  demandant  had  omitted 
one  that  tended  right,  ne  such  other.  Xe  he  may  not  as- 
sent to  the  casting  of  an  essoin  nor  protection  tor  him,  it  he 
know  that  the  demandant  hath  right  ;  ne  he  may  not  vouch 
for  him,  except  it  be  that  he  knoweth   that  the  tenant  hath 

♦Het.  7S;  8  Co.  88;   Hob.  51,  52. 


122  Doctor  and  Student. 

a  true  cause  of  a  voucher  and  of  lien,  and  that  he  doth  it 
to  bring  him  thereto.  And  in  like  wise  he  may  not  pray  in 
aid  for  him,  unless  he  know  the  prayee  have  good  cause  of 
voucher  and  lien  over ;  or  that  he  knew  that  the  prayee 
hath  somewhat  to  plead  that  the  tenant  may  not  plead,  as 
villeinage  in  the  demandant,  or  such  other. 

Doct.  Though  the  plaintiff'  hath  brought  an  action  that 
is  unt.  ue,  and  not  maintainable  in  the  law,  yet  the  defendant 
doth  wrong  to  the  plaintiff  in  the  with-holding  of  the  profits 
as  well  beiore  the  action  brought,  as  hanging  the  action  ; 
and  that  wrong,  as  it  seemeth,  the  counsellor  doth  main- 
tain, and  also  sheweth  himself  to  favour  the  party  in  that 
wrong,  when  he  giveth  counsel  against  the  action. 

Stud.  If  the  plaintiff  do  take  that  for  a  favour,  and  a 
maintenance  of  his  wrong,  he  judgeth  farther  than  the  cause 
is  given,  so  that  the  counsellor  do  no  more  but  give  counsel 
against  the  action  :  for  though  he  give  him  counsel  to  with- 
stand the  action  for  the  untruth  of  it,  and  that  he  should  not 
confess  it,  and  to  make  thereby  a  fine  to  the  king  without 
cause  ;  yet  it  may  not  stand  with  reason  that  he  may  give 
counsel  to  the  party  to  yield  the  profits.*  And  therefore  I 
think  he  may  in  this  case  be  of  counsel  with  him  at  the 
Common  law,  and  be  against  him  in  Chancery ,  and  in 
either  court  give  his  counsel,  without  any  contrariosity  or 
hurt  of  conscience.  And  upon  this  ground  it  is,  that  a  man 
may  with  good  conscience  be  of  counsel  with  him  that  hath 
land  by  descent,  or  by  a  discontinuance  without  title,  if  he 
that  hath  the  right  bring  not  his  action  according  to  the 
law,  for  the  recovering  of  his  right  in  that  behalf. 

Chap.  VIII. —  The  seventh  question  of  the  student. 

If  a  man  take  distress  for  debt  upon  an  obligation  f  or 
upon  a  contract,  or  such  other  thing  that  he  hath  right  title 
to  have,  but  that  he  ought  not  by  the  law  to  distrain  for  it, 


*  2  B.  398. 

f  Ante,  23  ;   post.  127. 


Dialogue   II. — Chap.    8.  123 

and  nevertheless  he  keepeth  the  same  distress  in  pound  till 
he  be  paid  of  his  duty,  what  restitution  is  he  bound  to  make 
in  this  case?  Whether  shall  he  repay  the  money,  because 
he  is  come  to  it  by  an  unlawful  means,  or  only  restore  the 
party  for  the  wrongful  taking  of  the  distress,  or  for  neither? 
I  pray  you  shew  me? 

Doct.  What  is  the  law  in  this  case? 

S/nd.  That  he  that  is  distrained*  may  bring  a  special 
action  of  trespass  against  him  that  distrained,  f  for  that  he 
took  his  beasts  wrongfully,  and  kept  them  till  he  made  a 
fine  ;  and  therefore  he  shall  recover  the  fine  in  damages,  as 
he  shall  do  for  the  residue  of  trespass  :  for  the  taking  of  the 
money  by  such  compulsion,  is  taken  in  the  law  but  as  a 
fine  wrongfully  taken,  though  it  be  his  duty  to  have  it. 

Doct.  Yet  though  he  may  so  recover,  methinketh  that  as 
to  the  repayment  of  the  money,  he  is  not  bound  thereto  in 
conscience,  so  that  he  take  no  more  than  of  right  he  ought 
to  have  :  for  though  he  came  to  it  by  unjust  means,  vet 
when  the  money  is  paid  him,  it  is  his  of  right,  and  he  is 
not  bound  to  repay  it,  unless  it  be  recovered  as  thou  said'st ; 
and  then  when  he  hath  repayed  it,  he  is,  as  methinketh, 
restored  to  his  first  action.  But  to  the  redelivery  of  the 
beasts,  with  such  damages  and  such  hurt  as  he  hath  bv  the 
distress,  I  suppose  he  is  bound  to  make  recompence  of 
them  in  conscience  without  compulsion  or  suit  in  the  law  : 
for  though  he  might  lawfully  have  sued  for  his  duty  in  such 
manner  as  the  law  hath  ordered;  yet  I  agree  well  that  he 
may  not  take  upon  him  to  be  his  own  judge,  and  to  come 
to  his  duty  against  the  order  ot  the  law.  And  therefore  if 
any  hurt  come  to  the  parly  by  the  disorder,  he  is  bound  to 
restore  it.  But  I  woidd  think  it  were  the  more  doubt,  if  a 
man  took  such  a  uistress  lor  a  trespass  done  to  him,  and 
keepeth  the  distress  till   amends  be  made  for  the  trespass  :f 

*  Sayer's  Rep.  14S. 

f  Or  ho  may  have  a  replevin,  and  if  the  distress  had  not  been  impounded, 
he  might  have  made  a  rescue-      Co.  Litt.  47. 

*  2  New  Abr.  2. 


124  Doctor  and  Student. 

m 

for  in  that  case  the  damages  be  not  in  certain,  but  be  arbi- 
trable either  by  the  assent  of  the  parties,  or  by  twelve  men. 
And  it.  seemeth  that  there  is  no  assent  of  the  party  in  this 
case,  especially  no  free  assent,  for  that  he  doth  is  by  com- 
pulsion, and  to  have  his  distress  again,  and  so  his  assent  is 
not  much  to  be  pondered  in  that  case,  for  all  his  assessing 
of  him  that  took  the  distress,  and  so  he  hath  made  himself 
his  own  judge,  and  that  is  prohibited  in  all  laws  :  but  in 
that  Qase  where  the  distress  is  taken  for  debt,  he  is  not  his 
own  judge  ;  for  the  debt  was  judged  in  certain  before  the 
first  contract,  and  therefore  some  think  great  diversity 
betwixt  the  cases. 

Stud.  By  that  reason  it  seemeth,  that  if  he  that  distrained 
in  the  first  case  for  the  debt  take  any  thing  for  his  damages, 
that  he  is  bound  in  conscience  to  restore  it  again ;  for 
damages  be  arbitrable,  and  not  certain,  no  more  than 
trespass  is  ;  and  me  seemeth  that  both  in  the  case  of  tres- 
pass* and  debt,  he  is  bound  in  conscience  to  restore  that 
lie  taketh  :  for,  though  he  ought  in  right  to  have  like  sum 
as  he  receiveth,  yet  he  ought  not  to  have  the  money  that  he 
receiveth,  for  he  came  to  the  money  by  an  unjust  means  : 
wherefore  it  seemeth  he  ought  to  restore  it  again. 

Doct.  And  if  he  should  be  compelled  to  restore  it  again, 
should  he  not  yet  (for  that  he  received  it  once)  be  barred 
of  his  first  action  notwithstanding  the  payment? 

Stud.  I  will  not  at  this  time  clearly  assoil  thee  that  ques- 
tion ;  but  this  I  will  say,  That  if  any  hurt  come  to  him 
thereby,  it  is  through  his  own  default,  for  that  he  would  do 
against  the  law  :  but  nevertheless  a  little  I  will  say  to  thy 
question,  that,  as  me  seemeth,  when  he  hath  repaid  the 
money,  that  he  is  restored  to  his  first  action.  As  if  a  man 
condemned  in  an  action  of  trespass  pay  the  money,  and 
after  the  defendant  reverse  the  judgment  by  a  writ  of  error, 

This  cannot  be  understood  of  a  trespass  damage  feasant,  for  in  that 
case  it  is  ctaar  that  a  man  may  lawfully  distrain  the  beasts  of  a  stranger 
which  come  upon  his  premises;  and  if  reasonable  tender  of  amends  is 
made  1dm  by  the  owner  of  the  beasts  before  they  are  impounded,  and  he 
ai  ■  epts  it.  he  is  not  hound  to  repay  the  money  either  in  law  or  equity. 


Dialogue    II. — Chap.  9. 


and  have  his  money  repaid,  then  the  plaintiff  is  restored  to 
his  first  action.  And  therefore  if  he  that  in  this  case  took 
the  money,  restore  that  he  took  by  the  wrongful  distress, 
or  that  he  ordered  the  matter  so  liberally  that  the  other 
murmur  not,  he  complain  not  at  it,  me  seemeth  he  did  very 
well  to  be  sure  in  conscience  :  and  therefore  I  would  advise 
every  man  to  be  well  aware  how  he  distraineth  in  such  case 
against  the  law. 

Duct.  Thy  counsel  is  good,  and  I  note  much  in  this 
case,  That  the  party  may  have  an  action  of  trespass  against 
him  that  distraineth,  so  that  he  is  taken  in  the  law  but  as  a 
wrong-doi  r  ;  and  therefore  to  pay  the  money  again  is  tie 
sure  wav,  as  thou  hast  said  before.  And  I  pray  thee  now 
shew  me  for  what  a  man  may  lawfully  distrain,  as  thou 
thinkest. 

Chap.   IX. — For   what  things  a   man   may  lawfully  dis- 
train. 

Stud.  A  man  may  lawfully  distrain  for  a  rent-service, 
and  for  all  manner  of  services,*  as  homage,  fealty, 
escuage,f  suit  of  court,  reliefs,  and  such  other.  Also  for 
a  rent  reserved  upon  a  gift  in  tail,  a  lease  for  term  of  life, 
for  years,  or  at  will,  if  he  reserve  the  reversion,  the  feoffor 
shall  distrain  of  common  right,  though  there  be  no  distress 
spoken  of. J  But  in  case  a  man  make  a  feoffment,  and 
that  in  fee  by  indenture,  reserving  a  rent,  he  shall  not  dis- 
train for  that  rent,  unless  a  distress  be  expressly  reserved  :§ 
and  if  the  feoffment  be  made  without  a  deed  reserving  a 
rent,  that  reservation  is  void  in  law,  and  he  shall  have  the 
rent  only  in  conscience,  and  shall  not  distrain  for  it.      And 


2  Inst.  11S;  Noy's  Max.  43 ;  Gilbert's  Distresses,  7,  8. 

:  As  the  service  ol  escuage  was  peculiarly  incident  to  knight  service, 
it  is  entirely  abolished  by  the  statute  of  12  Cur.  2,  ante,  26,  and  does  not 
rank  among  the  modern  English  tenures,  like  suit  of  eourt,  fealty,  and 
relief. 

t  Co    Litt.  142. 

i?  Hut  it  seems  to  be  good  to  bind  the  feoffee  by  way  of  contract.  :  New 
Abr.   106. 


Doctor  and  Student. 


like  law  is  where  a  gift  in  tail,  or  a  lease  for  term  of  life  is 
made,  the  remainder  over  in  fee,  reserving  a  rent,  that  re- 
servation is  void  in  the  law.* 

Also,  if  a  man  seised  of  land  for  term  of  life  granteth 
away  his  whole  estate,  reserving  a  rent,f  that  reservation  is 
void  in  the  law,  without  it  be  by  indenture ;  and  if  it  be  by 
indenture,  yet  he  shall  not  distrain  for  the  rent,  but  a  distress 
be  reserved. |  And  for  amerciaments  in  a  leet  the  lord 
shall  distrain  ;§  but  for  amerciaments  in  a  Court-Baron  he 
shall  not  distrain. j| 

Also,  if  a  man  make  a  lease  at  Michaelmas  for  a  year, 
reserving  rent  payable  at  the  feasts  of  the  Annunciation  of 
our  lady,  and  St.  Michael  the  arch-angel  ;  in  that  case  he 
shall  distrain  for  the  rent  due  at  our  Lady-day-,  but  not  for 
the  rent  due  at  Michaelmas, If  because  the  term  is  expired.** 

But  if  a  man  make  a  lease  at  the  feast  of  Christmas,  for 
to  endure  to  the  feast  of  Christmas  next  following,  that  is 
to  say,  for  a  year,  reserving  a  rent  at  the  aforesaid  feasts 
of  the  Annunciation  of  our  lady,  and  St.  Michael  the  arch- 
angel ;  there  he  shall  distrain  for  both  the  rents  as  long  as 
the  term  continued,  that  is  to  say,  till  that  aforesaid  feast 
of  Christinas. 

And  if  a  man  hath  land  for  term  of  lifeff  of  John  at  Noke, 
and  maketh  a  lease  for  term  of  years,  reserving  a  rent,  the 
rent  is  behind,  and  John  at  Noke  dieth  ;  there  he  shall  not 
distrain,  because  his  reversion  is  determined. 

Also,  if  he  to  whose  use  feoffees  been  seised  maketh  a 

*  Litt.,  sec.  215. 

jBr.  Reservation,  pi.  8. 

\  Br.  Distress,  pi.  S ;  8  Co.  41 ;   1  Roll.  Rep.  201 ;  Cro.  Eliz.  74S. 

§  Or  he  may  have  an  action  of  debt.     Cro.  Jac.  3S2  ;   1  Wils.  243. 

||  But  if  the  lord  can  prescribe  in  a  distress  for  the  amerciament,  then  it 
becomes  lawful.     Gilbert  Law  of  Distresses,  16. 

\  Co.  Litt.  47;  2  Cro.  442;  1  Roll.  672. 
*By  the  S  Ann.,  c  14,  rent  maybe  distrained  for  after  determination 
of  the  lease,  in  the  same  manner  as  before,  if  the  distress  is  made  within 
six  calendar  months  afterward,  and  during  the  continuance  of  the  land- 
lord's title,  and  the  possession  of  the  tenant  from  whom  the  arrears  are 
due. 

tf  Br.  Distress,  pi.  74. 


Dialogue   II. — Chap.  9.  127 

lease  for  term  of  years,  or  for  term  of  life,  or  a  gift  in  tail 
reserving  a  rent ;  there  the  reservation  is  good,  and  the 
lessor  shall  distrain. 

And  if  a  township  be  amerced,  and  the  neighbours  by 
assent  assess  a  certain  sum  upon  every  inhabitant,*  and 
agree  that  if  it  be  not  paid  by  such  a  day,  that  certain  per- 
sons thereto  assigned  shall  distrain  :  in  this  case  the  distress 
is  lawful.  If  lord  and  tenant  be,  and  if  the  tenant  do  hold 
of  the  lord  by  fealty  and  rent:f  and  the  lord  doth  grant 
away  the  fealty,  reserving  the  rent,  and  the  tenant  atturneth  ; 
in  this  case  he  that  was  lord  may  not  distrain  for  the  rent, 
for  it  is  become  a  rent-seek. $  But  if  a  man  make  a  gitt  in 
tail  to  another,  reserving  fealty  and  certain  rent,  and  after 
that  he  granteth  away  the  fealty,  reserving  the  rent  and  the 
reversion  to  himself ;  in  this  case  he  shall  distrain  for  the  rent? 
for  the  grant  of  the  fealty  is  void,  for  the  fealty  cannot  be  sev- 
ered from  the  reversion. §  Also,  for  heriot-service  the  lord 
shall  distrain  ;||  and  for  heriot-custom  he  shall  seise,  and  not 
distrain.1T  Also,  if  rent  be  assigned,  to  make  a  partition  or 
assignment  of  dewer  legal,  he  or  she  to  whom  the  rent  is 
assigned  may  distrain.  And  in  all  these  cases  abovesaid, 
where  a  man  may  distrain,  he  ma}- not  distrain  in  the  night,** 
but  for  damage-  feasant  ;ft  tnat  's  to  sav'  where  beasts  do 
hurt  in  his  ground,  he  may  distrain  in  the  night.  Also  for 
wastes,  for  reparations,  for  accompts,  for  debts  upon  con- 
tracts, or  such  other,  no  man  may  lawfully  distrain. 

:  Gilb.  Law  of  Distresses,  31. 
t  Litt.,  sec.  226. 

.  I! ,  stat.  4  Geo.  2,  c.  2S,  the   like   remedy  is  given  by  distress  for  rent- 
seek  a<  for  any  other  rent. 
§  Co.  Litt.  143. 
I  Ir  he  may  seize  at  his  election.     Cro.  Eliz.  ^2;   Cro.  Jac.  260;  3  Mod. 
-  ;  1  • 

Kelw.82;  Bro.,  tit.  Heriot,  a ;  NTo/s  Max.  25. 

Which  according  to  the  author  of  the  Mirror  and  construction  of  hm, 
is  after  sun-set,  and  before  sun-rising.     Mirr.,  c.  2,  sec.  6. 
tf  Co.  Litt.  142. 


128  Doctor  and  Student. 


Chap.  X. —  The  eighth  question  of  the  student. 

If  a  man  do  a  trespass,  and  after  make  his  executors, 
and  die  before  any  amends  made  ;  whether  be  his  exec- 
utors bound  in  conscience  to  make  amends  for  the  trespass, 
if  they  have  sufficient  goods  thereto,  though  there  be  no 
remedy  against  them  by  the  law  to  compel  them  to  it? 

Doct.  It  is  no  doubt  but  they  are  bound  therelo  in  con- 
science, before  any  other  deed  in  charity  that  they  may  do 
for  him  of  their  own  devotion. 

Stud.  Then  would  I  wit,  if  the  testator  made  legacies  by 
his  will,  whether  the  executors  be  bound  to  do  first,  that  is 
to  say,  to  make  amends  for  the  trespass,  or  to  pay  the  leg- 
acies, in  case  they  have  no  goods  to  do  both? 

Doct.  To  pay  legacies  :  for  if  they  should  first  make 
recompence  for  the  trespass,  and  then  have  not  sufficient  to 
pay  the  legacies  ;*  they  should  be  taken  in  the  law  as 
wasters  of  their  testator's  goods  ;  for  the}'  were  not  com- 
pellable by  no  law  to  make  amends  for  the  trespass,  because 
every  trespass  dieth  with  the  person  ;  j  but  the  legacies  they 
should  be  compelled  by  the  law  spiritual  to  fulfil,  and  so 
they  should  be  compelled  to  pay  the  legacies  of  their  own 
goods,  and  they  shall  not  be  compelled  thereto  by  no  law 
ne  conscience  :  but  if  the  case  were,  that  he  leave  sufficient 
goods  to  do  both,  then  methinketh  they  be  bound  to  do  both, 
and  that  they  be  bound  to  make  amends  for  the  trespass, 
before  they  may  do  any  other  charitable  deed  lor  the  testa- 
tor of  their  own  mind,   as  I  have  said  before,  except  the 

"Office  of  Executor,  292;  Noy's  Max.  5;   Office  of  Executor,  126. 

fThis  maxim  not  being  generally  true,  but  liable  to  many  exceptions, 
leaves  the  law  undefined  as  to  the  kind  of  personal  actions  which  die  with 
the  person  or  survive  against  the  executor.  However,  it  may  be  affirmed 
with  certainty,  that  where  the  cause  of  action  is  a  tort,  or  arises  ex  delit  to, 
supposed  to  be  by  force  and  battery,  against  the  king's  peace;  there  the 
action  dies,  as  trover,  battery,  false  imprisonment,  words,  nuisance,  ob- 
structing lights,  diverting  a  water-course,  etc.     Cow.  Rep.  374,  375. 


Dialogue   II. — Chap.  io.  129 

funeral  expenses*  that  be  necessary,  which  must  be  al- 
lowed before  all  other  things. f 

Stad.  And  what  the  proving  of  the  testament? 

Doct.  The  ordinary  may  nothing  take  by  conscience, 
therefore,  if  there  be  not  sufficient  goods  besides  for  the 
funerals,|  to  pay  the  debts,  and  to  make  restitution.  And 
in  like  wise  the  executors  be  bound  to  pay  debts  upon  a 
simple  contract,  before  any  other  deed  of  charity  that  they 
may  do  for  the  testator  of  their  own  devotion,  though  they 
shall  not  be  compelled  thereto  by  the  law. 

Stud.  And  whether  thinkest  thou  that  they  be  bound  to 
do  first,  that  is  to  say,  to  make  amends  for  the  trespass,  or 
to  pay  the  debts  upon  a  simple  contract? 

Doct.  To  pay  the  debts,  for  that  is  certain,  and  the  tres- 
pass is  arbitrable. 

Stad.  Then  for  the  plainer  declaration  of  this  matter, 
and  other  like,  I  pray  thee  shew  me  thy  mind,  by  what  law 
it  is,  that  if  a  man  make  executors,  that  the  executors,  if 
they  take  upon  them,  be  bound  to  perform  the  will,  and  dis- 
pose the  goods  that  remain  for  the  testator? 

Doct.  I  think  that  it  is  best  by  the  law  of  reason. 

Stud.  And  methinketh  that  it  should  be  rather  by  the 
custom  of  the  realm. 

Doct.  In  all  countries,  and  in  all  lands,  they  make  exec- 
utors. 

Stud.  That  seemeth  to  be  rather  by  a  general  custom, 
alter  that  the  law  and  custom  of  property  was  brought  in, 
than  by  the  law  of  reason,  for  as  long  as  all  things  were  in 
common,  there  were  no  executors  ne  wills,  no  they  needed 
not  them  :  and  when  property  was  alter  brought  in,  me- 
thinketh that  yet  making  of  executors,  and  disposing  of 
goods  by  will,  alter  a  man's  death,  followeth  not  necessarily 
thereupon  :   lor  it  might  have  been   made  tor  a   law.  that  a 


Office  01  Executor,  129,  130;  ^  1>.  C 
f  And  see  what  expences  ami  articles  will  be  allowed  against  creditors  in 
Wentworth's  Office  of  Exec.  29:,  173;  2  Salk.  296:  3  Atk   249. 
J  Office  of  Executor,  130,  131. 


130  Doctor  and   Student. 

man  should  have  had  the  property  of  his  goods  only  during 
his  life,  and  that  then,  his  debts  paid,  all  his  goods  to  have 
been  left  to  his  wife  and  children,  or  next  of  his  kin,  with- 
out any  legacies  making  thereof:  and  so  it  might  now  be 
ordained  by  statute,  and  the  statute  good,  and  not  against 
reason.  Wherefore  it  appeareth  that  executors  have  no 
authority  by  the  law  of  reason,  but  by  the  law  of  man. 
And  by  the  old  law  and  custom  of  the  realm  a  man  may 
make  executors,  and  dispose  his  goods  by  his  will,  and  then 
his  executors  shall  have  the  execution  thereof,  and  his  heirs 
shall  have  nothing,  but  if  any  particular  custom  help:*  and 
the  executors  shall  also  have  the  whole  possession  and  dis- 
position of  all  his  goods  and  chattels,  as  well  real  as  per- 
sonal, though  no  word  be  expressly  spoken  in  the  will,  that 
they  shall  have  them  :  and  they  shall  have  also  actions  to 
recover  all  debts  due  to  the  testator, f  though  all  debts  and 
legacies  of  the  testator  be  paid  before,  and  shall  have  the 
disposition  of  them  to  the  use  of  the  testator,  and  not  to 
their  own  use.  And  so  methinketh  that  the  authority  to 
make  executors,  and  that  they  shall  dispose  the  goods  (or 
the  testator,  is  bv  the  custom  of  this  realm  :  but  then.  I 
think,  as  thou  sayest,  that  by  the  law  of  God  they  shall  be 
bound  to  do  the  first,  that  is,  to  the  most  profit  of  the  soul 
of  their  testator,  where  the  disposition  thereof  is  left  to  their 
discretion  ;±  and  that,  I  agree  well,  is  to  pay  debts  upon 
contracts,  and  to  make  amends  lor  wrong  done  by  the  tes- 
tator, though  tiiey  be  not  compelled  thereto  by  the  law  and 
custom  of  the  realm,  if  there  be  none  other  debt  nor  legacy 
that  they  be  bound  to  pay  by  the  law;  but  if  two  several 
debts  be  payable  by  the  law,  then  which  debt  they  shall  do 
first  in  conscience,  I  am  somewhat  in  doubt. 

Doct.   Let  us  first  know  what  the  Common  law  is  therein. 

Stud.  The  Common  law  is,  That  if  the  testator  owe  10^. 
to  two  men  severally  by  obligation,  or  by  such  other  man- 
ner ih   t  an  action  lieth  against  his  executors  thereof  by  the 

*  Office  of  Executor,  53.  57,  >S,  59;   ante,  22. 
t  Lovelass  on  I  ntestacy  and  Wills,  43. 
J  Office  of  Executor,  155. 


Dialogue    II. — Chap.    io.  iji 

law,  and  he  leavelh  goods  to  pay  the  one,  and  not  both;* 
that  in  that  case  he  that  can  first  obtain  his  judgment  against 
the  executors,  shall  have  execution  of  the  whole,  and  the 
other  shall  have  nothing:  but  to  which  of  them  he  shall 
in  conscience  owe  his  favour,  the  Common  law  teacheth 
not. 

Doct.  Therein  must  be  considered  the  cause  why  the 
debts  began,  and  then  he  must  after  conscience  bear  his 
lawful  favour  to  him  that  hath  the  clearest  cause  of  debt :  and 
if  both  have  like  cause,  then  in  conscience  he  must  bear 
his  favour  where  is  most  need  and  greatest  charity. 

Stud.  May  the  executors  in  that  case  delay  that  action 
that  is  first  taken,  if  it  stand  not  with  so  good  conscience  to 
be  paid  as  another  debt  whereof  no  action  is  brought,  and 
procure  that  an  action  may  be  brought  thereof,  and  then  to 
confess  that  action,  that  he  may  so  have  execution,  and  then 
the  executors  to  be  discharged  against  the  other? 

Doct.  Why  may  he  not  in  that  case  pay  the  other  with- 
out action,  and  so  be  discharged  in  the  law  against  the 
first  ? 

Stud.  No  verily,  for  after  an  action  is  taken,  the  ex- 
ecutor mav  not  minister  the  i^oods  so,  but  that  he  leave  so 
much  as  shall  pay  the  debt  whereof  the  action  is  taken  :f 
and  it  he  do  not,  he  shall  pay  it  of  his  own  goods,  except 
another  recover  and  have  judgment  against  him  hanging 
that  action,  and  that  without  covin. 

Doct.  Then  to  answer  to  thy  question,  I  think,  that  by 
delays  that  be  lawful,  as  by  essoin,  imparlance,  or  by  dila- 
tory plea  in  abatement  of  the  writ,  that  is  true  he  may  delay 
it  :\  but  he  may  plead  no  untrue  plea  to  prefer  the  other  to 
his  duty,  lint,  I  pray  thee,  what  is  the  law  ot  legacies, 
restitution,  and  debts  upon  contracts,  thai  percase  ought 
rather  after  charity  to  be  paid  than  a  debt  upon  an  obliga- 
tion? What  may  the  favour  of  the  executor  do  in  these 
cases ? 


Office  <>f  Exec   ■  \\:  Swin.  4;;.  +58 

I  Office  "I    I   \ ec.   144- 
1  lb.   144. 


132  Doctor  and  Student. 

Stud.  Nothing  :  lor  if  they  either  perform  legacies,  make 
restitutions,  or  pay  debts  upon  contracts,*  and  keep  not 
sufficient  to  pay  debts  which  they  are  compelled  by  the  law 
to  pay,  that  shall  be  taken  as  a  dcvastaverunt  bona  tcsta- 
tor/s,-\  that  is  to  say,  that  they  have  wasted  the  goods  of 
their  testator;  and  therefore  they  shall  be  compelled  to  pay 
the  debts  of  their  own  goods  \\  and  so  it  is,  if  they  pay  a 
debt  upon  an  obligation,  whereof  the  day  is  yet  to  come, 
though  it  be  the  clearer  debt,  and  that  be  the  more  charity 
to  have  it  paid.§ 

Doct.  Yet  in  that  case,  if  he  to  whom  the  debt  is  already 
owing  forbear  till  after  the  day  of  the  other  obligation  is 
past,  then  he  may  pay  him  without  danger.  || 

Stud.  That  is  true,  if  there  be  no  action  taken  upon  it ; 
and  though  there  be,  yet  if  that  action  may  be  delayed  by 
lawful  means  as  thou  hast  spoken  of  before,  till  after  the 
day,  and  that  an  action  is  taken  upon  it,  then  may  the  ex- 
ecutor confess  the  action,  and  then  after  judgment  he  may 
pay  the  debt  without  danger  of  the  law. 

Doct.  Is  not  that  confessing  of  the  action  so  done  of 
purpose  a  covin  in  the  law? 

Stud.  No,  verily  ;  for  covin  is  where  the  action  is  untrue, 
and  not  where  the  executors  bear  a  lawful  favour. IT 

Doct.  The  ordinary,  upon  the  accompt  in  all  the  cases 
before  rehearsed,  will  regard  much  what  is  best  for  the 
testator. 

Stud.  But  he  may  not  drive  them  to  accompt  against  the 
order  of  the  Common  law.*"* 

iS'Lovelass  on  Intestacy  and  Wills,  186,  187. 
f  Office  of  Exec.  292,  157. 
JNoj's  Max.  104. 
§  Office  of  Exec.  292. 
||  lb.  142. 
IS  win.  a,  459. 
•     •*  Office  of  Exec.  21. 


Dialogue   II. — Chap.    ii.  133 


Chap.  XI. —  The  ninth  question  of  the  student. 

A  man  is  indebted  to  another  upon  a  simple  contract  in 
20/.  and  he  maketh  his  will,  and  bequeathed!  20/.  to  H. 
Hart,  and  dieth,  and  leaveth  goods  to  his  executors  only  to 
bury  him  with,  and  to  perform  the  said  legacy,  and  after 
ihi'  said  executors  deliver  the  goods  of  their  testator  in  per- 
formance ot"  the  said  bequest:  whether  is  he  to  whom  the 
bequest  is  made  bound  in  conscience  to  pa}'  the  said  debt 
upon  the  simple  contract,  or  not? 

Doci.   Is  he  not  bound  thereto  by  the  law? 

Stud.   No,  verily. 

Doct.   And  what  thinkest  thou  he  is  in  conscience? 

Stud.  I  think  that  he  is  not  bound  thereto  in  conscience, 
for  he  is  neither  ordinal}',  administrator,  nor  executor. 
And  I  have  not  heard  that  any  man  is  bound  to  pay  debts 
of  any  man  that  is  deceased,  but  he  be  one  of  those  three. 
For  the  goods  that  the  testator  left  to  the  executors  were 
never  charged  with  the  debt,  but  the  person  of  the  testator 
while  he  lived  was  only  charged  with  the  debt,  and  not  his 
goods;  and  his  executors,  that  represent  his  estate  after  his 
death,  having  goods  thereto  of  the  testator's,  be  charged 
also  with  the  debts,  and  not  the  goods.  And  therefore  if 
an  executor  give  away  or  sell  all  the  goods  ot'  tin-  testator, 
or  otherwise  waste  them,  he  that  hath  the  goods  is  not 
charged  with  the  debts  in  law  nor  conscience,  but  the 
executors  shall  be  charged  of  their  own  goods.*  And  in 
like  wise,  if  John  at  Noke  owe  to  A.  B.  20/.  and  A.  B. 
oweth  to  C.  D.  20/.,  and  after  A.  1).  dieth  intestate,  having 
none  other  goods  but  the  said  20/.  which  the  said  John  at 
Noke  oweth  him  ;  yet  the  said  C.  D.  shall  have  no  remedy 
against  the  said  John  at  Noke,  tor  he  standeth  not  charged 
to  him  in  law  nor  conscience.  But  the  ordinary  in  that 
ease  must  commit  administration  01  the  goods  ot  the  said 
A.  B.,  and  the  said    administrator  must  lev}'  the  money  of 

*Ante,  132. 


I j4  Doctor   and  Student. 

the  said  John  at  Noke,  and  pay  it  to  the  said  C.  D.,  and  the 
said  John  at  Noke  shall  not  pay  it  himself,  because  he  is 
not  charged  therewith  to  him  :  and  no  more  methinketh  in 
this  case,  that  he  to  whom  the  bequest  is  made,  is  neither 
charged  to  him  that  the  money  was  owing  to,  in  the  law  or 
conscience. 

Doct.  Then  shew  me  thy  mind,  by  what  law  it  was 
grounded,  as  thou  thinkest,  that  executors  be  bound  to  pay 
debts  before  legacies  ;  whether  it  is  by  the  law  of  God,  or 
by  the  law  of  reason,  or  by  the  law  of  man,  as  thou 
thinkest? 

Stud.  I  think  that  it  is  both  by  the  law  of  reason  and  by 
the  law  of  God.  For  reason  wills  that  they  shall  do  first 
that  is  best  for  the  testator,  and  that  is  to  pay  debts,  that 
their  testator  is  bound  to  pay,  before  legacies  that  he  is 
not  bound  to.*  And  also  by  the  law  of  God  they  are 
bound  to  pay  the  debts  first :  for  sith  they  are  bound  by  the 
law  of  God  to  love  their  neighbour,  they  are  bound  to  do  for 
him  that  shall  be  best  for  him,  when  they  have  taken  the 
charge  thereto,  as  executors  do  when  they  agree  to  take 
the  charge  of  the  will  of  their  testator  upon  them ;  and  it  is 
better  for  the  testator  that  his  debts  be  paid,  (wherefore  his 
soul  shall  suffer  pain)  than  that  his  legacies  be  performed, 
wherefore  he  shall  suffer  no  pain  for  the  performing  of 
them.f 

And  that  is  to  be  understood,  where  the  legacy  is  made 
of  his  own  free-will,  and  not  where  it  is  made  as  a  satisfac- 
tion of  any  duty.  And  after  the  saying  of  St.  Gregory,  the 
very  true  proof  of  love  is  the  deed.  But  this  man  is  not  in 
that  case,  for  he  took  never  the  charge  upon  him  to  pay 
the  debts  of  the  testator,  and  therefore  he  is  not  bound  to 
them  in  law  nor  conscience,  as  me  seemeth  :  but  rather  the 
executors  should  have  been  ware  ere  they  had  paid  the 
legacies,  seeing  there  were  debts  to  pay. 

Doct.  The  executors  might  no  otherwise  have  done  in 


Office  of  Exec.  27. 
t  lb.  155- 


Dialogue   II. — Chap.    ii.  135 


this  case,  but  to  pay  the  legacies  :  for  them  they  should 
have  been  compelled  by  the  law  to  have  paid,  and  so  they 
could  not  have  been  to  have  paid  the  debt  upon  a  contract,* 
and  therefore  they  did  well  in  performing  of  that  legacy ; 
but  he  to  whom  the  legacy  was  made  ought  not  to  have 
taken  them,  but  ought  in  conscience  to  have  suffered  them 
to  have  gone  to  the  payment  of  the  debt.  And  sith  he  did 
not  so,  but  took  them  where  he  had  no  right  to  them,  it 
seemelh  that  when  he  took  them,  he  took  with  them  the 
charge  in  conscience  to  pay  the  debt :  for  sith  the  executors 
were  compellable  by  the  law  to  perform  that  bequest,  and 
not  to  pay  the  debt,  therefore  when  they  performed  that 
bequest,  they  were  discharged  thereby  against  him  that  the 
debt  was  owing  to,  in  the  law  and  conscience  ;  and  then 
the  charge  rested  upon  him  that  took  the  goods,  where  he 
ought  not  in  conscience  to  have  taken  them  :  but  if  it  had 
been  a  debt  upon  an  obligation,  or  such  other  debt,  where- 
upon remedy  hath  been  had  against  the  executors  by  the 
law,  I  there  suppose,  though  that  the  executors  had  per- 
formed the  legacy,  that  yet  he  to  whom  the  legacy  was 
made  and  performed,  had  not  been  charged  in  conscience 
to  the  payment  of  the  debt,  for  the  executors  stood  still 
charged  thereto  of  their  own  goods  ;  and  he  to  whom  the 
bequest  was  made  was  only  bound  in  conscience  to  repay 
that  he  received  to  the  executors,  because  he  had  no  right 
to  have  received  it,  for  against  the  executors  he  had  no 
right  thereto. 

Stud.  Then  it  seemeth  in  this  case,  that  in  like  wise  he  to 
whom  tiie  bequest  was  made  should  repay  that  he  received 
to  the  executors,  and  then  they  to  pay  it  rather  than  he.f 

But  the  old  law  is  now  altered,  and  an  action  will  lie  against  the  ex- 
ecutor upon  the  assumpsit  of  the  testator  implied  in  a  simple  c  mtracb 
Lev.  20o,  201 ;  2  Cro.  293.     A.nd  therefore  an  should  bs  very  ca     • 

lul  how  he  pays  legacies  pecuniary  orspecific,  especially  where  his  testator 
dies  much  indebted,  without  taking  securities  from  the  different  legatees 
to  refund  incase  debts  of  any  kind  shall  appear,  or  putting  himself  under 
the  directi  in  of  a  court  of  equity. 
t2Vern.  205:    1  Chan.  C,i    136. 


136  Doctor  and  Student. 

Doct.  The  executors  have  no  farther  meddling  with  it, 
as  this  case  is  :  for  when  they  performed  the  bequest,  they 
were  discharged  against  both  the  other  in  law  and  con- 
science :  and  also  he  to  whom  the  bequest  was  made  stood 
not  in  this  case  charged  to  the  executors  ;  for  against  them 
he  had  good  title  by  the  law :  and  so  this  charge  standeth 
only  against  him  that  the  debt  is  owing  to.  And  the  same 
law,  that  is  in  this  case  upon  a  debt  upon  a  contract,  as  if 
the  testator  had  done  a  trespass  whereupon  he  ought  to  have 
made  restitution,  that  is  to  say,  that  he  to  whom  the  bequest 
is  made,  is  bound  to  make  the  amends  for  the  trespass  :  for 
it  should  be  no  discharge  to  him  to  pay  it  again  to  the  exec- 
utors without  they  paid  it  over,  and  it  were  uncertain  to 
him  whether  they  should  pay  it  or  not.  And  therefore  to 
be  out  of  peril,  it  is  necessary  that  he  pay  it  himself,  and 
then  he  is  surely  discharged  against  all  men. 

Chap.  XII. —  The  tenth  question  of  the  student. 

A  man  seised  of  certain  land  in  his  demesne  as  of  fee, 
hath  issue  two  sons,  and  died  seised,  after  whose  death  a 
stranger  abateth,  and  taketh  the  profits,  and  after  the  eldest 
son  dieth  without  issue,  and  his  brother  bringeth  an  assize 
of  mortdanccstor  as  son  and  heir  to  his  father,  not  making 
mention  of  his  brother,  and  recovereth  the  land  with  dam- 
ages from  the  death  of  his  father,  as  he  may  well  by  the 
law  :*  whether  in  this  case  is  the  younger  brother  bound  in 
conscience  to  pay  to  the  executors  of  the  eldest  brother  the 
value  of  the  profits  of  the  said  land  that  belonged  to  the 
eldest  brother  in  his  life,  or  not? 

Doct.  What  is  thine  opinion  therein? 

Stud.  That  like  as  the  said  profits  belonged  of  right  to 
the  eldest  brother  in  his  life,  and  that  he  had  lull  authority 
to  have  released  as  well  the  right  of  the  said  land  as  of  the 
said  profits,  which  release  should  have  been  a  clear  bar  to 
the  younger  brother  for  ever ;    that  the  right  of  the  said 

*2  Inst.  2S7. 


Dialogue   II. — Chap.   12.  137 


damages,  which  be  in  the  law  but  a  chattel,  belong  to  his 
executors,  and  not  to  the  heir:*  for  no  manner  of  chattel, 
neither  real  nor  personal,  shall  after  the  law  of  the  realm 
descend  unto  the  heir. 

Doct.  Thou  saidest  in  the  case  next  before,  that  it  is  not 
of  the  law  of  reason,  that  a  man  shall  make  executors,  and 
dispose  of  his  goods  by  his  will,  and  that  the  executors 
shall  have  the  goods  to  dispose,  but  by  the  law  of  man  ; 
and  if  it  be  left  to  the  determination  of  the  law  of  man,  that 
in  such  cases  as  the  law  giveth  such  chattels  unto  the  exec- 
utors, they  shall  have  good  right  unto  them,  and  in  such 
cases  as  the  law  taketh  such  chattels  from  them,  they  been 
rightfully  taken  from  them  :  and  therefore  it  is  thought  by 
many,  that  if  a  man  sue  a  writ  of  Right  of  Wa?'d  of  a 
ward,  that  he  hath  by  his  own  fee,  and  dieth  hanging  the 
writ,  and  his  heir  sue  a  re-summons,  according  to  the  stat- 
ute of  Westminster  2,  and  recovereth  ;f  that  in  that  case 
the  heir  shall  enjoy  the  wardship  against  the  executors,  and 
yet  it  is  but  a  chattel.  And  they  take  the  reason  to  be,  be- 
cause of  the  said  statute.  And  so  it  might  be  ordained  by 
statute,  that  all  wards  shall  go  to  the  heirs,  and  not  to  the 
executors.  Right  so  in  this  case,  sith  the  law  is  such,  that 
the  younger  brother  shall  in  this  case  have  an  assize  of 
mortdancestor\  as  heir  to  his  father,  not  making  any  men- 
tion of  his  elder  brother,  and  recover  damages  as  well  in 

Ante,  z\  :  Office  of  Exec.  53,  57,  58,  59. 

t  2  In-t,  441  :    ante.   27. 

X  On  an  assize  of  mortdancestor,  Mr.  Justice  Blackstone  has  the  following 
observation  (3  B.  C.  iS7^  :  "  It  was  always  says  he  held  to  be  law,  thai 
where  lands  were  devisable  in  a  man's  last  will  by  the  custom  of  the  place, 
there  an  assize  of  mortdancestor  did  not  lie.  For  where  land-  were  so  de- 
visable, the  right  of  possession  could  never  be  determined  by  a  pro 
which  enquired  only  of  these  two  points,  the  seisin  of  the  ancestor  and  the 
heirship  of  the  demandant,  and  hence  it  might  be  reasonable  to  conclude, 
that  when  the  statute  of  Will-.  32  II  8,  C  1.  made  all  socage  lands  de- 
visable, an  assize  of  mortdancestor  no  longer  could  be  brought  of  land- 
held  in  socage;  an  !  that  now  since  the  -tat.  12  Cha.  2.  e.  J4,  which  con- 
verts all  tenures  (a  few  only  excepted  into  free  and  common  socage,  it 
should  follow  that  no  assize  of  mortdancestor  can  be  brought  of  any  iands 
in  the  kingdom.'* 


138  Doctor  and  Student. 

the  time  of  his  brother  as  in  his  own  time  ;*  it  appeareth  that 
the  law  giveth  the  right  of  these  damages  to  the  heir,  and 
therefore  no  recompence  ought  to  be  made  to  the  executors, 
as  me  seemeth.  And  it  is  not  like  to  the  writ  of  Aiel,f 
where,  as  I  have  learned  in  Latin,  (sith  our  first  dialogue) 
the  demandant  shall  recover  damages  only  from  the  death 
of  his  father,  if  he  overlive  the  Aiel  :f  and  the  cause  is,  for 
that  the  demandant,  though  his  Aiel  overlived  his  father, 
must  of  necessity  make  his  conveyance  by  his  father,  and 
must  make  himself  son  and  heir  to  his  father,  and  cousin 
and  heir  to  his  Aiel  ;§  and  therefore  in  that  case,  if  the 
father  overlived  the  Aiel,  the  abator  were  bounden  in  con- 
science to  restore  to  the  executors  of  the  father  the  profits 
run  in  his  time  (for  no  law  taketh  them  from  him)  ;  but 
otherwise  it  is  in  this  case  as  me  seemeth. ' 

Stud  If  the  younger  brother  in  this  case  had  entered 
into  the  land  without  taking  any  assize  of  mortdancesto?', 
as  he  might  if  he  would,  to  whom  were  the  abator  then 
bounden  to  make  restitution  for  those  profits,  as  thou  think- 
est? 

Doct.  To  the  executors  of  the  eldest  brother ;  for  in  that 
'Case  there  is  no  law  that  taketh  them  from  them,  and  there- 
fore the  general  ground,  which  is  that  all  chattels  shall  go 
to  the  executors,  holdeth  in  that  case  ;  but  in  this  case  that 
ground  is  broken  and  holdeth  not,  for  the  reason  that  I  have 
made  before.  For  commonly  there  is  no  general  ground 
in  the  law  so  sure,  but  it  faileth  in  some  particular  case. 

Chap.  XIII. —  The  eleventh  question  of  the  student 

Stud.  A  man  seised  of  land  in  fee  taketh  a  wife,  and 
after  alieneth  the  land,  and  dieth,  after  whose  death  his  wife 
asketh  her  dower,  and  the  alienee  refuseth  to  assign  it  unto 

*  2  Inst.  2S7. 

t  Since  an  ejtctment  has  been  introduced,  the  writ  of  Aiel  has  fallen  into 
disuse. 

\  2  Inst.  288. 
§Ib. 


Dialogue   II. — Chap.  13.  139 

her,  but  after  she  asketh  her  dower  again,  and  he  assign- 
eth  it  unto  her  :  whether  is  the  alienee  in  this  case  bound  in 
conscience  to  give  the  woman  damages  for  the  profits  of  the 
land  after  her  third  part  from  the  death  of  her  husband,  or 
from  the  first  request  of  her  dower,  or  neither  the  one  nor 
the  other. 

Doct.  What  is  the  law  in  this  case? 

Stud.  By  the  law  the  woman  shall  recover  no  damages  ;* 
for  at  the  common  law  the  demandant  in  a  writ  of  dower 
should  never  have  recovered  damages ;  but  by  the  statute 
of  Merton,f  it  is  ordained,  that  where  the  husband  die'th 
seised,  that  the  woman  shall  recover  damages,:}:  which  is 
understood  the  profits  of  the  land  sith  the  death  of  her  hus- 
band, and  such  damages  as  she  hath  by  the  forbearing  of 
it.§  But  in  this  case  the  husband  died  not  seised,  where- 
fore she  shall  recover  no  damages  by  the  law.|| 

Doct.  Yet  the  law  is,  that  immediately  after  the  death  of 
her  husband  the  wife  ought  of  right  to  have  her  dower,  if 
she  ask  it;   though  her  husband  die  not  seised. 

Stud.   That  is  true. 

Doct.  And  sith  she  ought  to  have  her  dower  from  the 
death  of  her  husband,  it  seemeth  that  she  ought  in  con- 
science to  have  also  the  profits  from  the  death  of  her  hus- 
band, though  she  have  no  remedy  to  come  to  them  by  the 
law  ;1T  for  methinketh  that  this  case  is  like  to  a  case  that  thou 
puttestin  our  first  dialogue  in  Latin,  the  seventeenth  chapter. 
That  if  a  tenant  for  term  of  life  be  disseised  and  die.  and 
the  disseisor  dieth,  and  his  heir  entereth  and  taketh  the 
profits,  and  after  he  in  the  reversion  recovereth  the  lands 
against  the  heir,  as  he  ought  to  do  by  the  law,  that  in  that 
case  he  shall  recover  no  damages  by  the  law  ;  and  yet  thou 
didst  agree,  that  in  that  case  the  heir  is  bound  in  conscience 

*2  Inst.  30;    Co.  Litt.  33. 
t  20  II.  3,  C.  I. 
J  Dyer,  2S4. 

§  And  by  the  statute  of  Gloucester,  6  Ed.  i,  e.  1,  she  is  intitled  to  costs 
as  well  as  damages. 
||  Co.  Litt.  32. 
^  lb 


140  Doctor  and  Student. 

to  pay  the  damages  to  the  demandant :  and  so  methinketh 
in  this  case  that  the  feoffee  ought  in  conscience  to  pay  the 
damages  from  the  death  of  her  husband,  seeing  that  im- 
mediately after  his  death  she  ought  to  have  her  dower. 

Stud.  Though  she  ought  to  be  indovved  immediately 
after  the  death  of  her  husband,  yet  she  can  lay  no  default 
in  the  feoffee  till  she  demand  her  dower  upon  the  ground, 
and  that  the  tenant  be  not  there  to  assign  it,  or  if  .he  be 
there,  that  he  will  not  assign  it;*  for  he  that  hath  the  pos- 
session of  land  whereunto  any  woman  hath  title  of  dower, 
hath  good  authority  as  against  her  to  take  the  profits  till  she 
require  her  dower  ;  for  every  woman  that  demandeth  dower 
affirmeth  the  possession  of  the  tenant  as  against  her  :  and 
therefore  although  she  recover  bv  action,  she  leaveth  the 
reversion  alway  in  him  against  whom  she  recovereth, 
though  he  be  a  disseisor,  and  bringeth  not  the  reversion  by 
her  recovery  to  him  that  hath  right,  as  other  tenants  for 
term  of  life  do.  And  for  this  reason  it  is  that  the  tenant  in 
a  writ  of  dower,  where  the  husband  died  seised,  if  he  ap- 
pear the  first  day,  may  say,  to  excuse  himself  of  damages, f 
that  he  is,  and  all  times  hath  been  ready  to  yield  dower  if 
it  had  been  demanded;  and  so  he  shall  not  be  received  to 
do  in  a  writ  of  coisnage,t  neither  in  the  case  that  thou  re- 
memberest  above  :  for  in  both  cases  the  tenants  be  supposed 
by  the  writ  to  be  wrong-doers,  but  it  is  not  so  in  this  case  ; 
and  so  methinketh  it  is  quite  clear  that  the  feoffee  in  this 
case  shall  never  be  bound  by  law  nor  conscience  to  yield 
damages  for  the  time  that  passed  before  the  request,  but  for 
the  time  after  the  request  is  greater  doubt  ;§  howbeit  some 
think  him  there  not  bound  to  yield  damages,  because  his 
title  is  good,  as  is  said  before,  and  that  it  is  her  default  that 
she  brought  not  her  action. 

Doct.  As  unto  the  time  before  the  request  I  hold  me  con- 
tent with  thine  opinion,  so  that   he   assign   the  dower  when 

*  Co.  Litt.  32. 

t  Br.  Dair.ages,  pi    79;  Co.  Litt.   32,  ^. 

X  This  writ,  like  that  of  Aiel,  is  now  grown  quite  out  of  use. 

§Jenk.  45,  pi.  85;   Co.  Litt.  32. 


Dialogue    II. — Chap.    13.  141 

he  is  required  :  but  when  lie  refuseth  to  assign  it,  then  I 
think  him  bound  in  conscience  to  yield  damages  for  both 
times,  though  she  shall  none  recover  by  the  law.  And 
first,  as  lor  the  time  after  the  refusal,  it  appeareth  evidently, 
that  when  he  denied  to  assign  her  dower  he  did  against  con- 
science  ;  for  he  did  not  that  he  ought  to  have  done  by  the 
law,  ne  as  he  would  should  have  been  done  to  him  :  and  so 
alter  the  request  he  holdeth  her  dower  from  her  wrongfully, 
and  ought  in  conscience  to  yield  damages  therefore.  And 
as  to  the  default  that  thou  assignest  in  her,  that  she  took  not 
her  action,  that  forceth  little  ;  for  actions  need  not  but  where 
the  party  will  not  do  that  he  ought  to  do  of  right;  and  for 
that  he  ought  of  right  to  have  done,  and  did  it  not,  he  can 
take  no  advantage.  And  then  as  to  the  damages  before  the 
request,  methinketh  him  also  bounden  to  pay  them;  for 
when  he  was  required  to  assign  dower,  and  refused,  it  ap- 
peareth that  he  never  intended  to  yield  dower  from  the  be- 
ginning, and  so  he  is  a  wrong-doer  in  his  own  conscience. 
And  moreover,  if  the  husband  die  seised,  the  law  is  such, 
that  if  the  tenant  refuse  to  assign  dower  when  he  is  required, 
wherefore  the  woman  bringeth  a  writ  of  dower  against  him, 
that  in  that  case  the  woman  shall  recover  damages  as  well 
for  the  time  before  the  request  as  after  ;  and  yet  he  ought  not 
in  that  case,  after  thine  opinion,  to  have  yielded  any  man- 
ner of  damages,  if  he  had  been  ready  to  assign  dower  when 
it  was  demanded,  as  some  think  here. 

Stud.  The  cause  in  the  ease  that  thou  hast  put  is,  for  that 
the  statute  is  general,  that  the  demandant  shall  recover 
damages  where  the  husband  died  seised,  and  that  statute 
hath  been  alway  construed,  that  where  the  tenant  may  not 
say  that  he  is  and  hath  been  ready  alway  to  yield  dower, 
etc.,  that  the  demandant  shall  recover  damages  from  the 
death  of  her  husband.*  But  in  that  case  there  is  no  law 
of  the  realm  that  helpeth  lor  the  demandant,  neither  com- 
mon law  nor  statute.  And  furthermore,  though  it  mi 
be  proved  by  his  refusal,  that  he  never  intended   from  the 

•  Co   Litt   32. 


142  Doctor  and  Student. 

death  of  the  husband  to  assign  her  dower;  yet  that  proveth 
not  but  that  he  had  good  right  to  take  the  profits  of  her 
third  part  for  the  time,  as  well  as  he  had  of  his  own  two 
parts,  till  request  be  made,  as  is  aforesaid  :  and  so  me- 
thinketh  that,  notwithstanding  the  denial,  he  is  not  bound 
to  yield  damages  in  this  case,  but  for  the  time  of  the  re- 
quest, and  not  for  the  time  before. 

Doct.   For  this  time  I  am  content  with  thy  reason. 

Chap.   XIV. —  The  twelfth  question  of  the  student. 

Stud.  A  man  seised  of  certain  lands,  knowing  that  an- 
other hath  oood  right  and  title  to  them,  levieth  a  fine  with 
proclamation,  to  the  intent  he  would  extinct  the  right  of  the 
other  man,  and  the  other  man  maketh  no  claim  within  the 
five  years  :  whether  may  he  that  levied  the  fine  hold  the 
land  in  conscience,  as  he  may  do  by  the  law?* 

Doct.  By  this  question  it  seemeth  that  thou  dost  agree, 
that  if  he  that  levied  the  fine  had  no  knowledge  of  the  other 
man's  right,  that  his  right  should  then  be  extincted  by  the 
fine  in  conscience. 

Stud.  Yes,  verily ;  for  thou  didst  shew  a  reasonable 
cause  why  it  should  be  so,  in  our  first  dialogue  in  Latin, 
the  twenty-fourth  chapter,  as  there  appeareth.  But  if  he 
that  levied  a  fine,  and  that  would  extinct  the  right  of  an- 
other, knew  that  the  other  had  more  right  than  he,  then  I 
doubt  therein  :  for  I  take  thine  opinion  in  the  first  dialogue 
to  be  understood  in  conscience,  where  he  that  would  ex- 
tinct former  rights  by  such  a  fine  by  proclamation,  knoweth 
not  of  an)'  former  title,  but  for  his  more  surety,  if  any  such 
former  right  be,  taketh  the  remedy  that  is  ordained  by  the 
law. 

Doct.  Whether  dost  thou  mean  in  this  case  that  thou 
puttest  now,  that  lie  that  hath  right  knoweth  of  the  fine, 
wilfully  letting  the  Wva  years  pass  without  claim,  or  that  he 
knoweth  not  anything  of  the  fine? 

*  Ante,  65,  no. 


Dialogue   II. — Chap.  15.  143 

Stud.  I  pray  thee  let  me  know  thine  opinion  in  both 
cases,  and  whether  thou  think  that  he  that  hath  right  be 
barred  in  either  of  the  said  cases  by  conscience,  as  he  is  by 
the  law,  or  not? 

Doct.  I  will  with  good-will  hereafter  shew  thee  mv  mind 
therein  :  but  at  this  time  I  pray  thee  give  a  little  sparing, 
and  proceed  now  for  this  time  to  some  other  question. 

Chap.  XV. —  The  thirteenth  question  of  the  student. 

Stud.  A  man  seised  of  certain  land,  in  lee  hath  a  daugh- 
ter, which  is  his  heir  apparent,  the  daughter  taketh  an 
husband,  and  they  have  issue  ;  the  father  dieth  seised,  and 
the  husband  as  soon  as  he  heareth  of  his  death  goeth  toward 
the  land  to  take  possession,  and  before  he  can  come  there 
his  wile  dieth  :  whether  ought  he  to  have  the  land  in  con- 
science tor  term  of  his  life  as  tenant  by  the  courtesy,*  be- 
cause he  hath  done  that  in  him  was,  to  have  had  possession 
in  his  wife's  life,  so  that  he  might  have  been  tenant  by  the 
courtesy  according  to  the  law  ;  or  that  he  shall  neither  have 
it  by  the  law  nor  conscience? 

Doct.  Is  it  clearly  liolden  in  the  law,  that  he  shall  not 
be  tenant  by  the  courtesy  in  this  case,  because  he  had  not 
possession  in  deed? 

Stud.  Yea,  verilv,  and  yet  upon  a  possession  in  law  a 
woman  shall  have  her  dower  ;t  but  no  man  shall  be  tenant 
bv  the  courtesv  of  land  without  his  wife  have  possession  in 
deed. \ 

Doct.  A  man  shall  he  tenant  by  the  courtesy  of  a  rent 
though  his  wife  die  before  the  day  of  payment, §  and  in 
like  wise  of  an  advowson||  though  she  die  before  the  avoid- 
ance. 1[ 

Perk.,  sec.  45S. 
tCo-  Litt.  31. 
I  Finch  Law,  129. 
§  Co.  Litt.  29. 
||  2  B.  C.  127. 

*  A nd  Mr.  Perkins  thinks  that  notwithstanding  the  advowson  becomes 
void  during  the  coverture,  and  the  wife  dies  after  the  six  months  past,  and 


144  Doctor  and  Student. 

Stud.  That  is  truth  ;  for  the  old  custom  and  maxim  of  the 
law  is,  that  he  shall  be  so  :  but  of  land  there  is  no  maxim 
that  serveth  him,  but  his  wife  have  possession  in  deed. 

Doct.  And  what  is  the  reason  that  there  is  such  a  maxim 
in  the  law  of  the  rent,  and  of  the  aclvowson,  rather  than  of 
land,  when  the  husband  doth  as  much  as  in  him  is,  to  have 
possession,  and  cannot? 

Stud.  Some  assign  the  reason  to  be,  because  it  is  im- 
possible to  have  possession  in  deed  of  the  rent,  or  of  ad- 
vowson,*  before  the  day  of  payment  of  the  rent,  or  before 
the  avoidance  of  the  advowson. 

Doct.  And  so  it  is  impossible  that  he  should  have  posses- 
sion in  deed  of  land,  if  his  wife  die  so  soon  that  he  may  not 
by  a  possibility  come  to  the  land  after  his  father's  death, 
and  in  her  life,  as  the  case  is. 

Stud.  The  law  is  such  as  I  have  shewed  thee  before  : 
and  I  lake  the  very  cause  to  be,  for  that  there  is  a  maxim 
serveth  for  the  rent  and  the  advowson,  and  not  for  the  lands, 
as  I  have  said  before  :  and,  as  it  is  said  in  the  eighth  chap- 
ter of  our  first  dialogue, f  it  is  not  alway  necessary  to  assign 
a  reason  or  consideration  why  the  maxims  oi  the  law  of 
England  were  first  ordained  and  admitted  for  maxims  ;  but 
it  sufficeth  that  they  have  been  always  taken  for  law,  and 
that  they  be  neither  contrary  to  the  law  of  reason,  nor  to 
the  law  of  God,  as  this  maxim  is  not :%  and  therefore,  if  the 
husband  in  this  case  be  not  holpen  by  conscience,  he  can- 
not be  holpen  by  the  law. 

Doct.  And  if  the  law  help  him  not,  conscience  cannot 
help  him  in  this  case;  for  conscience  must  always  be 
grounded   upon    some  law  ;    and   it  cannot   in   this  case  be 

before  any  presentment  by  the  husband,  and  the  ordinary  presents  by  lapse 
unto  the  advowson,  that  the  husband  shall  still  be  tenant  by  courtesy. 
Perk.,  sec.  46S,  but  I  do  not  apprehend  there  is  any  authority  in  support  of 
this  opinion.  Indeed  it  seems  to  be  rather  an  extraordinary  one,  as  the 
laches  of  the  husband  must  certainly  be  a  capital  objection  against  his 
claim. 

*  Kelw.  104  ;    1  Co.  97. 

f  Ante,  26. 

J  Ante,  79. 


Dialogue    II. — Chap.  15.  145 

grounded  upon  the  law  of  reason,  nor  upon  the  law  of  God  ; 
for  it  is  not  directly  by  those  laws  that  a  man  shall  be  ten- 
ant by  courtesy,  but  by  the  custom  of  the  realm  ;*  and 
therefore  if  the  custom  help  him  not,  he  can  nothing  have 
in  this  case  by  conscience  ;  for  conscience  never  resisteth 
the  law  of  man,  nor  addeth  nothing  to  it,  but  where  the  law 
of  mafi  is  in  itself  directly  against  the  law  of  reason,  or  else 
the  law  of  God,  and  then  properly  it  cannot  be  called  a  law, 
but  a  corruption  :|  or  where  the  general  grounds  of  the  law 
of  man  work  in  any  particular  case  against  the  said  laws, 
as  it  may  do,  and  yet  the  law  good,  as  it  appearelh  in  divers 
places  in  our  first  dialogue  in  Latin  ;  or  else  where  there  is 
no  law  of  man  provided  for  him  that  hath  right  to  a  thing 
by  the  law  of  reason,  or  by  the  law  of  God:  and  then 
sometime  there  is  remedy  given  to  execute  that  in  con- 
science, as  by  a  subpoena,  but  not  in  all  cases  ;%  for  some- 
time, it  shall  be  referred  to  the  conscience  of  the  party,  and 
upon  this  ground,  that  is  to  say,  that  when  there  is  no  title 
given  by  the  Common  law,  that  there  is  no  title  by  con- 
science. There  be  divers  other  cases,  whereof  I  shall  put 
some  for  an  example  :  As  if  a  reversion  be  granted  unto 
one,  but  there  is  no  attornment,  or  if  a  new  rent  be  granted 
by  word  without  deed  ;§  there  is  no  remedy  by  conscience, 
unless  the  said  giants  were  made  upon  consideration  of 
money,  or  such  other.  And  in  like  wise  where  he  that  is 
seised  of  lands  in  fee-simple  maketh  a  will  thereof, ||  that 
will  is  void  in  conscience,  because  the  ground  serveth  not 
for  him  whereby  the  conscience  should  take  effect,  that  is 
to  say,  the  law.  And  if  the  tenant  make  a  feoffment  of  the 
land  that  he  holdeth  by  priority,  ami  taketh  estate  again 
and  dieth,  (his  heir  within  age)  the  lord  of  whom  the  land 
was  first  holden  by  priority  shall   have  no  remedy  for  the 

Ante,  20. 
f  Ante,  11,  53. 
X  Ante,  39. 

§Litt.,  sec.  567.  ;6S ;   ante,  30. 
||  Ante.  23,  58. 
IO 


146  Doctor  and  Student. 

body  by  conscience;*  for  the  law  that  first  was  with  him, 
is  now  against  him,  and  therefore  conscience  is  altered  in 
like  wise  as  the  law  altereth.  And  divers  and  many  cases 
like  be  in  the  law,  that  were  too  long  to  rehearse  now. 
And  thus  methinketh,  that  if  the  law  be  as  thou  sayest,  the 
husband  in  this  case  hath  neither  right  by  the  law  nor 
conscience.  * 

Chap.   XVI. —  The  fourteenth  question  of  the  student. 

Stud.  A  rent  is  granted  to  a  man  in  fee  to  perceive  of  two 
acres  of  land,  and  after  the  grantor  enfeoffeth  the  grantee 
of  one  of  the  said  acres  ;f  whether  is  the  whole  rent  extinct 
thereby  in  conscience,  as  it  is  in  the  law? 

Doct.  This  case  is  somewhat  uncertain  :  for  it  appeareth 
.  not  whether  the  grantor  enfeoffed  him  on  trust,  or  that  he 
crave  the  acre  to  him  of  his  mere  motion  to  the  use  of  the 
said  feoffee  \%  or  else  that  the  feoffment  was  made  upon  a 
bargain  :  and  if  it  were  but  only  a  feoffment  of  trust,  then 
I  think  the  whole  rent  abideth  in  conscience,  though  it  be 
extincted  in  law.  And  first,  That  it  continueth  in  that  case 
in  conscience  for  the  part  that  the  grantee  hath  to  the  use 
of  the  grantor,  it  is  evident,  for  he  may  take  the  profits  of 
the  land,  and  it  is  against  conscience  that  he  should  leese 
both.  And  in  like  wise  it  abideth  in  conscience  for  the 
acre  that  remaineth  in  the  hands  of  the  grantor,  though  it 
be  extinct  in  the  law  :  for  there  was  a  default  in  the  grantor 
that  he  would  make  a  feoffment  to  the  grantee,  as  well  as 
there  was  in  the  grantee,  to  take  it ;  and  it  is  no  conscience 
that  of  his  own  default  he  should  take  so  great  avail,  to  be 
discharged  of  the  whole  rent,  seeing  that  the  feoffment  was 
made  to  his  own  use.  And  it  the  feoffment  were  made 
upon  a  bargain,  and  a  contract  between  them,  then  it  is  to 
see  whether  they  remembered  the  rent  in   their  bargain,  or 


*Vin.  Abr.,  title  Guardian  and  Ward,  166;  ante,  27. 
tLitt..  sec  222;  Wood's  Inst.  205; 
J  P08t   152. 


Dialogue    II. — Chap.    16.  147 

that  they  remembered  it  not;  and  if  they  remembered  it  in 
their  bargain  and  contract,  then  conscience  mnst  follow  the 
bargain  :  and  thus,  If  they  agreed  that  the  grantee  should 
have  the  rent  after  the  portion  in  the  other  acre,  then  by 
conscience  he  ought  to  have  it,  though  it  be  extincted  in 
the  law  ;  and  if  they  agreed  that  the  whole  rent  should  be 
extirrct,  and  made  their  price  according,  then  it  is  extinct 
in  law  and  conscience  ;  and  if  they  clearly  forgot  it,  and 
made  no  mention  of  it,  or,  for  lack  of  cunning,  took  the  law 
to  be  that  it  should  continue  in  the  other  acre  after  the  por- 
tion, and  made  their  price  according,  pondering  only  the 
value  of  the  acre  that  was  sold,  then  methinketh  it  doth 
continue  in  conscience  after  the  portion  ;  and  if  the  feoff- 
ment were  made  to  the  use  of  the  grantee,  then  it  seemeth 
the  whole  rent  is  extinct  in  law  and  conscience. 

Stud.  Then  take  this  to  be  the  case,  that  is  to  say,  that 
the  feoffment  Mas  made  to  the  use  of  the  grantee. 

Doct.   What  is  thine  opinion  therein? 

Stud.  Then  the  rent  should  abide  in  conscience  after  the 
portion  of  the  acre  remaining  in  the  hands  of  the  grantor, 
notwithstanding  it  be  extinct  in  the  law. 

Doct.  Then  shew  me  thine  opinion  in  this  that  I  shall 
csk  thee  :  Ol  what  law  is  it,  that  grants  of  rent,  and  of  such 
other  profits  out  of  lands  may  be  made,  and  that  they  shall 
be  good  and  effectual  to  the  grantees?  Whether  it  be  by 
the  law  of  reason,  or  by  the  law  of  God,  or  by  the  custom 
and  law  of  the  realm? 

Stud.  I  think  it  is  by  the  law  of  reason  :  for  by  the  same 
reason  that  a  man  may  give  away  all  his  lands,  lie  may,  as 
it  seemeth,  give  away  the  profits  thereof,  or  grant  a  rent 
out  of  the  land,  if  he  will. 

Doct.  But  then  by  what  law  is  it  that  a  man  may  give 
away  his  lands?  I  trow  by  none  other  law  but  by  the  cus- 
tom bf  the  realm  ;  for  by  statute  all  alienations  and  grants 
of  lands  may  be  prohibited  :  and  then  that  reason  proveth  not 
that  grants  of  the  profits  of  land,  or  of  a  rent,  should  be 
good,  because  he  may  alien  the  land,  if  alienation  of  land  be 


148  Doctor   and   StudenaT. 

\ 

by  custom,  and  not  by  the  law  of  reason, \*  as  I  suppose  it 
is,  whereof  I  have  touched  somewhat  in  our  first  dialogue 
in  Latin,  the  nineteenth  chapter.  And  also  if  grants  should) 
have  their  effect  by  the  law  of  reason,  them  reason  would 
they  should  be  good  by  the  only  word  of  the  grantor,  as 
well  as  by  his  dwd  ;  and  that  is  not  so,  for  without  deed 
the  grant  of  rent  is  void  in  law  ;  and  so  methinketh,  that 
grants  have  their  effects  only  by  the  law  of  the  realm. f 

Stud.   Admit  it  be  so,  what  meanest  thou  thereby? 

Doct.  I  shall  shew  thee  hereafter,  as  I  shall  shew  thee 
the  cause  why  I  think  the  rent  is  ext.nct  in  conscience  as 
well  as  in  law.  And  first,  as  I  take  it,  the  reason  why  it  is 
extinct  in  the  law,  is  because  the  rent  by  the  first  grant  was 
going  out  of  both  acres,  and  was  not  going  part  out  of  the 
one  acre,  and  part  out  of  the  other,  but  the  whole  rent  was 
going  out  of  both  \\  and  then  when  the  grantee  of  his  own 
folly  will  take  estate  in  the  one  acre,  whereby  that  acre  be 
discharged,  then  the  other  acre  also  must  be  discharged, 
unless  it  should  be  apportioned  ;  and  the  law  will  not  that 
any  apportionment  should  be  in  that  case;§  but  rather  in- 
somuch as  the  party  hath  by  his  own  act  discharged  the 
one  acre,  the  law  discharged  also  the  other,  rather  than  to 
suffer  the  other  acre  to  be  charged  contrary  to  the  form  of 
the  grant  :||  for  this  rent  beginneth  all  by  the  act  of  the 
party  ;  and,  as  I  have  heard,  it  is  called,  A  rent  against 
common  rights  Wherefore  i,t  is  not  favoured  in  the  law, 
as  a  rent-service  is:  and  then   methinketh,  that  forasmuch 

Post.  155. 

t2  Roll.  Abr.  62;   Shop.  Touch.  22S. 

\  Co.  Litt.  147. 

§  Yet  it  seems  that  a  rent-charge  may  be  apportioned  by  the  act  of  the 
party,  as  if  a  man  hath  a  rent-charge  of  205.  he  may  release  to  the  tenant 
of  the  land  10s.  ormore  or  less,  and  reserve  part;  for  the  grantee  meddles 
only  with  that  which  is  his  own,  viz.,  the  rent  and  not  with  the  land.  Co. 
Litt.  1*48. 

||  But  if  the  grantor  by  ^-^d  reciting  the  purchase  had  granted  that  the 
grantee  should  distrain  for  the  same  rent  in  the  residue  of  the  land,  the 
whole  rent-charge  had  been  preserved,  because  such  power  of  distress  had 
amounted  to  a  new  grant.     Co.  Litt.  147. 

^j  Litt.,  sec.  222. 


Dialogue   II. — Chap.   16.  149 

as  it  is  not  grounded  by  the  law  of  Reason,  that  grants  of 
rent  should  be  made  out  of  land,  but  bV  custom  and  law  of 
the  realm,  as  1  have  said  before,  that  so  in  like  wise  it  re- 
mained* to  the  law  and  custom  of  the  realm  to  determine 
how  long  such  rents  shall  continue.*  And  when  the-  law 
judgeth  such  rent  to  be  void,  I  suppose  that  so  doth  con- 
science also,  except  the  judgment  of  the:  law  he  against  the 
law  of  reason,  or  the  law  of  God,  as  it  is  not  in  this  case. 
For  in  this  case,  he  that  taketh  the  teoffment  hatn  profit  by 
the  feoffment,  and  knoweth  that  he  hath  such  a  rent  out  of 
the  land,  and  that  this  purchase  should  extinct  it,  w.'u  n  by 
it  appeareth  that  he  assented  unto  the  law,  whereto  he  was 
not  compelled,  and  that  is  his  own  act,  and  his  own  default 
so  to  do,  which  shall  extinct  his  whole  rent  as  well  in  con- 
science as  in  law.  But  if  he  have  no  profit  of  the  land,  or 
be  ignorant  that  he  hath  such  a  rent  out  of  the  land,  which 
is  called  Ignorance  of  the  deed,  or  if  he  be  ignorant  that 
the  law  would  extinct  his  whole  rent  thereby,  which  is 
called  Ignorance  of  the  law,  then  methinketh  it  remaineth 
in  conscience  alter  the  portion. 

Stud.  Ignorance  of  the  law,f  or  of  the  deed,  helpeth  not 
but  in  few  cases  in  the  law  of  England.:; 

Doct.  And  therefore  it  must  be  reformed  by  conscience, 
that  is  to  say,  by  the  law  of  reason.  For  when  the  general 
maxims  of  the  law  be  in  any  particular  cases  against  t lie 
law  of  reason,  as  this  maxim  seemeth  to  be,  because  it  ex- 
ceptelh  not  them  that  be  ignorant,  though  it  be  an  ignorance 
invincible  ;§  then  doth  it  not  agree  with  the   law  of  reason. 

Stud.  Methinketh  that  ignorance  in  this  case  helpeth 
little.  For  when  a  man  buyeth  any  land,  or  taketh  it  of 
the  gift  of  any  other,  he  taketh  it  at  his  peril,  so  that  if  the 
title   be   no     good,   ignorance   cannot   help,||    for   the   buyer 

:  Ante,  14S. 

f  Douglas  Rep.  471 ; 

J  Ante,  77;   ;.ost.,  chap.  46. 

§  lb. 

||  Taiurn  c/rttrrc,  whether  a  court  of  equity  will  not  relieve  a  purchaser 
for  a    valuable  consideration,  who  used   all   pos-ible  means  to  find  out  in- 


150  Doctor  and   Student. 

must  beware  what  he  buyeth  :  and  so  in  this  case,  if  the 
taking  of  an  acre  should  extinct  the  whole  rent  in  con- 
science, if  he  were  not  ignorant,  so  methinketh  it  should  in 
like  wise  extinci  it  also,  though  he  be  ignorant  of  the  law, 
or  of  the  deed ;  for  every  man  must  be  compelled  to  take 
notice  of  his  own  title,  and  out  of  what  land  his  rent  is 
going,  and  so  methinketh  ignorance  is  but  little  to  be  con- 
sidered in  this  case. 

Doct.  If  a  man  buy  land,  or  taketh  it  of  the  gift  of  an- 
other, it  is  reason  that  he  take  it  with  the  peril,  though  he 
be  ignorant  that  another  hath  right  ;*  for  it  were  not  stand- 
ing with  reason  that  his  ignorance  should  extinct  the  right 
of  anodier  :  but  in  this  case  there  is  no  doubt  of  the  right 
ot  the  land,  but  all  the  doubt  is  how  the  rent  shall  be  or- 
dered in  conscience,  if  he  that  hath  the  rent  take  part  of 
the  land  :  and  therein  is  great  diversity  between  him  that 
is  ignorant  in  the  law,  and  him  that  knoweth  the  law,  and 
knoweth  well  also  that  he  hath  a  rent  out  of  the  land,  and 
other.  For  I  put  case,  he  asked  counsel  of  the  grantor 
himself  therein,  and  he  saying  as  he  thought,  told  him,  that 
the  taking  of  the  one  acre  should  not  extinct  the  rent  but 
for  the  portion,  and  so  he  thinking  the  law  to  be,  took  the 
other  acre  of  his  gift :  is  it  not  reasonable  in  that  case,  that 
the  ignorance  should  save  the  rent  in  conscience? 

Stud.  Ves,  for  there  the  grantor  himself  is  party  to  his 
ignorance,  and  in  manner  the  cause  thereof. 

Doct.  And  methinketh  all  is  one  if  any  other  had  shewed 
him  so,  or  if  he  asked  no  counsel  at  all ;  for  methinketh  it 
sufficeth  in  this  case  that  he  be  ignorant  of  the  law  :  for 
why?  it  is  more  hard  in  this  case  to  prove  the  rent  should 
be  extinct  in  conscience,  tho'  he  knew  it  should  be  extinct 
in  the  law,  than  to  prove  that  it  continueth  in  conscience 
alter  the  portion,  if  he  be  ignorant;  and  thou  thyself  wert 
of  the  same   opinion,    as  it  appeareth   in   the  beginning  ot' 

ciimb ranees  affeeting  Ids  title,  but  it  afterward  proves  to  be  bad  through 
some  latent  eircumstances  vvhieh  he  eould  not  well  inform  himself  of.    See 
2  I.        1525    R.  Eq.  Ca.  37;   Gary's  Rep.  132,  133. 
Ante,  [49. 


Dialogue   II. — Chap.    17.  151 

this  present  chapter.*  But  if  the  opinion  were  true,  it 
would  he  hard  to  prove  but  that  the  said  general  maxim 
were  wholly  against  reason,  and  then  it  were  void.  But  I 
have  sufficiently  answered  thereto,  as  me  seemeth,  and  that 
it  is  extinct  in  the  law,  and  also  in  conscience,  except  ig- 
norance help  it  to  be  apportioned.  And  moreover,  foras- 
much as  apportionment  is  suffered  in  the  law,  where  part 
of  the  land  descendeth  to  the  grantee,  because  no  default 
can  be  assigned  in  him  :  j  some  think  no  default  can  be  as- 
signed in  him  in  conscience,  when  he  is  ignorant  of  the  law, 
or  of  the  deed,  though  such  ignorance  do  not  excuse  in  the 
law  of  the  realm. 

Stud.  I  am  content  with  thy  opinion  in  his  behalf  at  this 
time. 

Chap.   XVII. —  The  fifteenth  question  of  the  student. 

A  man  granteth  a  rent-charge  out  of  two  acres  of  land, 
and  after  the  grantor  enfeoffeth  H.  H.  in  one  of  the  said 
two  acres  to  the  use  of  the  said  H.  H.  and  of  his  heirs, % 
and  after  the  said  II .  Hart,  intending  to  extinct  all  the  rent 
causeth  the  said  acre  to  be  recovered  against  him  to  his  own 
use  in  a  writ  of  Entry  in  le  post,  in  the  name  of  the  grantee, 
and  ot  others,  after  the  common  course,  the  grantee  not 
knowing  of  it,  and  by  force  of  the  said  recovery  the  other 
demandants  enter,  and  die  living  the  grantee,  so  that  the 
grantor  is  seised  of  all  by  the  survivor  to  the  use  of  the 
said  H.  H.,  whether  is  the  said  rent  extinct  in  conscience 
in  part  or  in  all,  or  no  part? 

Doct.   I  am  in  doubt  of  the  law  in  this  case. 

Stud.    In  what  point? 

Doct.  Whether  the  whole  rent  be  going  out  of  the  acre 
that  remaineth  in  the  hands  of  the  grantor,  because  the 
grantee  cometh  to  the  land  by  way  of  recovery  ;  or  that 
it  shall  be  extinct  in  law  but  after  the  portion,  because  the 

Ante,  146. 
t  Litt.,  sco.  224. 
J  Co.  Litt.  [48. 


152  Doctor  and  Student. 

grantee  hath  not  the  acre  to  his  own  use  ;  or  that  the  whole 
rent  shall  be  extinct  in  the  law  ? 

Stud.  The  rent  cannot  be  whole  going  out  of  the  acre 
that  the  grantor  hath  :*  for  this  recovery  is  upon  a  feigned 
title  ;  and  the  grantor,  because  he  is  a  stranger  to  it,  shal? 
be  well  received  to  falsify  it.f  But  if  the  recovery  had  been 
upon  a  true  title,  then  it  had  been  as  thou  sayest ;  if  the 
grantee  recover  the  one  acre  against  the  grantor  upon  the 
true  title,  the  grantor  shall  pay  the  whole  rent  out  of  the 
land  that  remaineth  in  his  hands.  J  And  as  to  the  use,  it 
maketh  no  matter  to  the  grantor,  as  to  the  law,  in  whom 
the  use  be  ;  for  the  possession  without  the  use  extinguished 
the  whole  rent  as  against  him,  in  the  law,  as  well  as  if  the 
possession  and  use  were  both  joined  together  in  the  grantee. 

Doct.  Then  methinketh  that  the  said  Henry  Hart  is  bound 
in  conscience  to  pay  the  grantee  the  rent  after  the  portion 
of  that  acre  that  was  recovered ;  for  it  cannot  stand  with 
conscience  that  he  should  lose  his  rent,  and  have  no  profits 
of  the  land? 

Stud.  Then  of  whom  shall  he  have  the  other  portion  of 
his  rent? 

Doct.  Is  the  law  clear,  that  the  acre  that  the  grantor  hath 
shall  be  in  this  case  discharged  in  the  law? 

Stud.   I  take  the  law  so. 

Doct.  And  what  in  conscience? 

Stud.  As  against  the  grantor,  methinketh  also  it  is  ex- 
tinct in  conscience,  for  the  reason  that  thou  hast  made  in 
the  sixteenth  chapter. §  For  it  is  all  one  in  conscience  in 
this  case  as  against  the  grantor,  whether  the  recovery  were 
to  the  use  of  the  grantee  or  not,  especially  seeing  that  the 
grantor  is  not  privy  to  the  recovery  :  lor  the  unity  of  pos- 
session is  the  cause  of  extinguishment  of  the  rent  against 
the  grantor,  both  in  law  and  conscience,  wheresoever  the  use 

C<>.  Litt.  14S. 
t  Piggot  on  Rec.  165. 
♦Co.  Litt.  148. 
§  Ante,  146. 


Dialogue    II. — Chap,    i 


lS3 


be.*  But  if  the  grantor  hath  been  privy  to  the  cause  of  the 
extinguishment,  as  he  was  in  the  case  that  Igput  in  the  last 
chapter,  where  the  grantor  enfeoffed  the  grantee  of  one  of 
the  acres  to  the  use  of  the  grantee  ;f  there  it  is  not  extinct 
in  conscience  in  that  acre  that  remaineth  in  the  hands  of 
the  grantor,  though  it  be  extincted  in  the  law,  because  he 
was  privy  to  the  extinguishment  himself:  but  he  is  not  in 
this  case,  and  therefore  it  is  extinct  against  him  in  law  and 
conscience.  And  therefore  melhinketh  that  the  grantee 
shall  in  conscience  have  the  whole  rent  of  the  said  Henry 
Hart,  that  causeth  the  said  recovery  to  be  had  in  his  name, 
lor  in  him  was  all  the  default.  But  it  is  to  be  understood, 
that  in  all  the  cases  where  it  is  said  before  in  this  chapter, 
or  in  the  chapter  next  before,  J  that  the  rent  is  extinct  in  the 
law,  and  not  in  conscience,  that  in  such  case  all  the  rem- 
edies that  the  party  might  first  have  had  for  the  rent  at  the 
Common  law  by  distress,  assise,  or  otherwise,  are  determined , 
and  the  party  that  ought  to  have  the  rent  in  conscience  shall 
be  driven  to  sue  for  his  remedy  by  subpoena. 

Doct.  I  am  content  with  thy  conceit  in  this  matter  for 
this  time. 

Ciiaf.   XVIII. —  1  he  sixteenth  question  of  the  student. 

Stud.  A  villein  is  granted  to  a  man  for  term  of  life,  the 
villein  purchaseth  lands  to  him  and  to  his  heirs,  the  tenant 
for  term  ot  life  entereth  ;§  in  this  case  by  the  law  he  shall 
enjoy  the  lands  to  him  and  to  his  heirs;  whether  s  all  he 
do  so  in  like  wise  in  conscience? 

Doct.  Methinketh  it  first  good  to  see  whether  it  may 
stand  with  conscience,  that  one  man  may  claim  another  to 
be  his  villein,  and  that  he  may  take  from  him  his  lands  and 
goods,  and  put  his  body  in  prison  it'  he  will  :)|  it  seemeth 
he  loveth  not  his  neighbour  as  himself  that  doth  so  to  him. 

*  Ante,  33. 
t  Ante,  146. 

;ib. 

§Perk-,  sec.  94;   Co.  Litt.  124. 
||  26  E.  3,  c.  24. 


154-  Doctor  and  Student. 

Stud.  That  law  hath  been  so  long  used  in  this  realm, 
and  in  other  also,  and  hath  been  admitted  so  long  in  the 
laws  of  this  realm,  and  in  divers  other  laws  also,  and  hath 
been  affirmed  by  bishops,  abbots,  priors  ;*  and  many  other 
men  both  spiritual  and  temporal,  which  have  taken  ad- 
vantage by  the  said  laws,  and  have  seized  the  lands  and 
goods  of  their  villeins  thereby,  and  call  it  their  right  in- 
heritance so  to  do  :f  that  I  think  it  not  good  now  to  make 
doubt,  ne  to  put  it  in  argument,  whether  it  stand  with  con- 
science, or  not?  And  therefore  I  pray  thee,  admitting  the 
law  in  that  behalf  to  stand  in  conscience,  shew  me  thine 
opinion  in  the  question  that  I  have  made. 

Doct.  Is  the  law  clear,  that  he  that  hath  the  villein  but 
only  for  term  of  life,  shall  have  the  lands  that  that  villein 
purchaseth  in  fee  to  him  and  to  his  heirs? 

Stud.  Yes,  verily  I  take  it  so. 

Doct.  I  should  have  taken  the  law  otherwise  :  for  if  a 
seigniory  be  granted  to  a  man  for  term  of  life, J  and  the 
tenant  altourn,  and  after  the  land  escheat,  and  the  tenant 
for  term  of  life,  entereth,  he  shall  have  there  none  other  es- 
tate in  the  land  than  he  had  in  the  seifjniorv  :  and  me- 
thinketh  that  it  should  be  like  law  in  this  case,  and  that  the 
lord  ought  to  have  in  the  land  but  such  estate  as  he  hath  in 
the  villein. 

Stud.  The  cases  be  not  alike  :  for  in  the  case  of  the  es- 
cheat the  tenant  for  term  of  life  of  the  seigniory  hath  the 
lands  in  lieu  of  the  seigniory, §  that  is  to  say,  in  the  place 
of  the  seigniory,  and  the  seigniory  is  clearly  extinct :  but  in 
this  case  he  hath  not  the  land  in  lieu  of  the  villein  ;||  for  he 
shall  have  the  villein  still  as  he  had  before,  but  he  hath  the 
lands  as  a  profit  come  by  means  of  the  villein,  which  he 
shall  have  in  like  case  as  the  villein  had  them,1T  that  is  to 


*  Br.  Villeinage,  pi.  70. 

f  Ante,  29. 

%  Br.  Villeinage,  pi.  70. 

§  Co.  Litt.  99 

||  Perk  ,  sec.  94. 

\  See  post.,  cap.  43;   Finch  Law.    159, 


Dialogue    II. — Chap.    18.  155 

say,  of  all  goods  and  chattels  he  shall  have  the  whole 
property,  and  of  a  lease  for  term  of  years  he  shall  have  the 
whole  term,  and  for  term  of  life  he  shall  have  the  same  es- 
tate, the  lord  shall  have  in  the  villein  during  the  life  of  the 
villein,  and  of  land  in  fee-simple;*  and  of  an  estate-tail 
that  the  villein  hath,  the  lord  shall  have  the  whole  fee-simple, 
although  he  had  the  villein  but  onlv  for  term  of  years,  so 
that  he  enter  or  seise  according  to  the  law  before  the  vil- 
lein alien,  or  else  he  shall  have  nothing. | 

Doct.  Verilv.  and  if  the  law  be  so,  I  think  conscience 
followeth  the  law  therein.  For  admitting  that  a  man  may 
with  conscience  have  another  man  to  be  his  villein,  the 
judgment  of  the  law  in  this  case  (as  to  determine  what  es- 
tate the  lord  hath  in  the  land  by  his  entry)  is  neither  against 
the  law  of  reason  nor  against  the  law  of  God,  and  there- 
fore conscience  must  follow  the  law  of  the  realm.  But  I 
pray  thee  let  me  make  a  little  digression,  to  hear  thine 
opinion  in  another  case  somewhat  pertaining  to  the  ques- 
tion, and  it  is  this  :  If  an  executor  have  a  villein  that  his 
testator  had  for  term  of  years,  and  he  purchaseth  lands  in 
fee,  and  the  executor  entereth  into  the  land,  what  estate 
hath  he  by  his  entry? 

Stud.   A  fee-simple, $  but  that  shall  be  to  the  behoof  of 
the  testator,  and  shall  be  an  asset  in  his  hands. § 

*Co.  Litt.  117. 

f  Ante,  29. 

X  Br.  Villeinage,  pi.  46. 

§  On  this  chapter  I  beg  leave  to  offer  the  following  brief  observation ; 
which  is,  that  although  villeinage,  properly  so  called,  was  happily  for  this 
countrv,  and  the  cause  of  civil  liberty,  abolished  by  the  memorable  statute 
of  12  Car.  j.  c  24,  which  we  have  had  occasion  to  mention  in  another 
place;  yet  there  is  a  proviso  in  that  statute,  which  declares  that  it  shall 
not  be  construed  to  extend  to  change  or  alter  any  tenure  by  copy  of  court 
roll,  or  any  services  incident  to  that  tenure:  and  from  this  proviso  we  may 
learn,  that  in  the  opinion  of  the  legislature  copyholds  had  some  connec- 
tion with  the  feudal  system.  Indeed  the  fact  was  so;  and  at  this  day  it 
may  perhaps  be  said,  that  copyhold  tenure  is  nothing  but  pure  villeinage 
divested  of  its  servile  appendages  by  the  hand  of  time.  F.  X.  15.  25. 
Custom  or  prescription  is  the  principal  foundation  of  the  immunities  which 
copyholders  now  enjoy,  and  is  the  life  of  their  estates.  Co.  Com.  Co.  204. 
For  though  they  hold  them  at  the  will  of  the  lord  like  their  ancestors   the 


156  Doctor  and  Student. 

Docl.  Well  then,  I  am  content  with  thy  conceit  at  this 
time  in  this  case,  and  I  pray  thee  proceed  to  another 
question. 

Stud.  Forasmuch  as  it  appeareth  in  this  case,  and  in 
some  other  before,  that  the  knowledge  of  the  law  of  Eng- 
land is  right  necessary  for  the  good  ordering  of  con- 
science ;  I  would  hear  thine  opinion,  if  a  man  mistake  the 
law,  what  danger  it  is  in  conscience  for  the  mistaking  of  it. 

Doct.  I  pray  thee  put  some  case  in  certain  thereof  that 
thou  doubtest  in,  and  I  will  with  good-will  shew  thee  my 
mind  therein,  or  else  it  will  be  somewhat  long,  or  it  can- 
not be  plainly  declared,  and  I  would  not  be  tedious  in  this 
writing. 

Chap.  XIX. —  The  seventeenth  question  of  the  student. 

Stud.  A  man  hath  a  villein  for  term  of  life;  the  villein 
purchaseth  lands  in  fee,*  as  in  the  case  of  the  last  chapter, 
and  the  tenant  for  term  of  lite  entereth,  and  aiter  the  villein 
dieth  :  he  in  the  reversion  pretending  that  the  tenant  for 
term  of  life  hath  nothing  in  the  land  but  for  term  of  life  of 
the  villein,  asketh  counsel  of  one  that  sheweth  him  that  he 
hath  good  right  to  the  land,  and  that  he  may  lawfully 
enter,  and  through  that  counsel  he  in  the  reversion  entereth, 
by  reason  of  the  which  entry  great  suits  and  expenses  fol- 
low in  the  law,  to  the  great  hurt  of  both  parties :  what 
danger  is  this  to  him  that  gave  the  counsel? 

Doct.  Whether  meanest  thou  that  he  that  gave  the 
counsel  gave  it  willingly  against  the  law,  or  that  he  was 
ignorant  of  the  law  ? 

Stud.  That  he  was  ignorant  of  the  law  :  tor  if  lie  knew 
the  law,  and  gave  counsel  to  the  contrary,  I  think  him 
bound  to  restitution,  both  to  him  against  whom  he  gave  the 

villeins,  yet  observe,  it  is  according  to  the  custom  of  the  manor*  lb.  And 
while  they  perform  the  services  which  that  custom  imposes  upon  them, 
flight  a  nd  easy  as  they  are  compared  with  the  drudgery  of  pure  villeinage 
in  its  original  state,)  theirproperty  is  secure  from  the  invasions  of  the  lord, 
they  have  a  permanency  in  it,  and  can  call  it  their  own.  Co.  Co.  58. 
*  Perk.,  sec.  94;   ante,  153 


Dialogue   IJ. — Chap.  19.  157 

counsel,  and  also  to  his  client,  (if  he  would  not  have  sued 
but  for  his  counsel)  of  all  that  they  he?  damnified  by  it. 

Doct.  Then  will  I  vet  farther  ask  thee  this  question  ; 
whether  he  of  whom  he  asked  counsel  gave  himself  to 
learning  and  to  have  knowledge  of  the  law  after  his  capac- 
ity ?  Or  that  he  took  upon  him  to  give  counsel,  and  took 
no  study  competent  to  have  learning?  For  if  he  did  so,  I 
think  he  be  bounden  in  conscience  to  restitution  of  all  the 
costs  and  damages  that  he  sustained  to  whom  he  gave 
counsel,  if  he  would  not  have  sued  but  through  his  counsel, 
and  also  to  the  other  party.  But  if  a  man  that  hath  taken 
sufficient  study  in  the  law  mistake  the  law  in  some  point 
that  it  is  hard  to  come  to  the  knowledge  of,  he  is  not 
bounden  to  such  restitution,  for  he  hath  done  that  in  him 
is :  but  if  such  a  man  knowing  the  law  give  counsel 
against  the  law,  he  is  bound  in  conscience  to  restitution  of 
costs  and  damages,  (as  thou  hast  said  before)  and  also  to 
make  amends  for  the  untruth.* 

Stud.  What  if  he  ask  counsel  of  one  that  he  knoweth  is 
not  learned,  and  he  giveth  him  counsel  in  this  case  to  enter, 
by  force  whereof  he  entereth  ? 

Doct.  Then  be  they  both  bound  in  conscience  to  restitu- 
tion ;  that  is  to  say,  the  party,  if  he  be  sufficient,  and  else 
the  counsellor,  because  he  assented,  and  gave  counsel  to 
the  wrong. 

Stud.  But  what  is  the  counsellor  in  that  case  bounden  to 
him  that  he  gave  counsel   to? 

Doct.  To  nothing  :  for  there  was  as  much  default  in  him 
that  asked  the  counsel  as  in  him  that  gave  it  ;  for  he  asked 
counsel  of  him  that  he  knew  was  ignorant:  and  in  the 
Other  was  default  for  the  presumption,  that  he  would  t.ike 
upon  him  to  gne  counsel  in  that  he  was  ignorant  in. 

Stud.  But  what  if  he  that  gave  the  counsel  knew  not  but 
that  he  that  asked  it  had  trust  in  him,  that  he  could  and 
would   give  him  good   couns<  1.  and    that    he  asked  counsel 


*  And  it  seems  that  he  is  liable  to  answer  in  an  action  of  disceit 


158  Doctor  and  Student. 

for  to  order  well  his  conscience,  howbeit  that  the  truth  was 

that  he  could  not  so  do? 

Doct.  Then  is  he  that  gave  the  counsel  bounden  to  offer 

to  the  other  amends,  but  yet  the  other  may  not  take  it   in 

conscience. 

Stud.  That  were  somewhat  perilous  ;  for  haply  he  would 

take  it,  though  he  have  no  right  to  it,  except  the  world  be 

well  amended. 

Doct.  What  thinkest  thou  in  that  amendment? 

Stud.   I  trust  every  man  will  do  now  in  this  world  as  they 

would  be  done  to,  speak  as  they  think,  restore  where  they 

have  done  wrong,  refuse  money  if  they  have  no  right  to  it, 

though  it  be  offered  them,  do  that  they  ought  to  do  by  con- 
science, and  though  that  they  cannot  be  compelled  to  it  by 
no  law  ;  and  that  none  will  give  counsel  but  that  they  shall 
think  to  be  according  to  conscience,  and  if  they  do,  to  do 
what  they  can  to  reform  it,  and  not  to  intermit  themselves 
with  such  matters  as  they  be  ignorant  in,  but  in  such  cases 
to  send  them  that  ask  the  counsel  to  other  that  they  shall 
think  be  more  cunning  than  they  are. 

Doct.  It  were  veiy  well  if  it  were  as  thou  hast  said,  but, 
the  more  pity,  it  is  not  alway  so  ;  and  especially  there  is 
great  default  in  givers  of  counsel  :  for  some,  for  their  own 
lucre  and  profit,  "ive  counsel  to  comfort  other  to  sue  that 
they  know  have  no  right,  but  I  trust  there  be  but  few  of 
them  ;  and  some  for  dread,  some  for  favour,  some  for  malice, 
and  some  upon  confederacies,  and  to  have  as  much  done  for 
them  another  time  to  hide  the  truth.  An.l  some  take  upon 
them  to  give  counsel  in  that  they  be  ignorant  in,  and  yet 
when  they  know  the  truth  will  not  withdraw  that  they  have 
misdone,  for  the)'  think  it  should  be  greatly  to  their  rebuke  ; 
and  such  persons  follow  not  this  counsel,  that  saith,  "  That 
we  have  unadvisedly  done,  let  us  with  good  advice  revoke 
again." 

Stud.   And  if  a  man   mve  counsel   in  this  realm  after  as 

o 

his  learning  and  conscience  giveth  him,  and  regardeth   the 
laws  of  the  realm,  giveth  he  good  counsel? 

Doct.    If  the  law  of  the  realm  be  not  in  that  case  against 


Dialogue   II. — Chap.   20. 


'59 


the  law  of  God,  nor  against  the  law  of  reason,  he  giveth 
good  counsel  :  for  every  man  is  bound  to  follow  the  law  of 
the  country  where  he  is,  so  it  be  not  against  the  said  laws  ;* 
and  so  may  the  cases  be,  that  he  may  bind  himself  to  res- 
titution. 

Stud.  At  this  time  I  will  no  farther  trouble  thee  in  this 
question. 

Chap.   XX. —  The  eighteenth  question  of  the  student. 

If  a  man  of  his  mere  motion  give  lands  to  II.  Hart,  and 
to  his  heirs,  by  indenture,  upon  a  condition,  that  he  shall 
yearly,  at  a  certain  day,  pay  to  John  at  Stile  out  of  the 
same  land  a  certain  rent,  and  if  he  do  not,  that  then  it 
should  be  lawful  to  the  said  John  at  Stile  to  enter,  etc.,  if 
the  rent  in  this  case  be  not  payed  to  John  at  Stile,  whether 
may  the  said  John  at  Stile  enter  into  the  lands  bv  con- 
science, though  he  may  not  enter  by  the  law? 

Doct.  May  he  not  enter  in  this  case  by  the  law,  sith  the 
words  of  the  indenture  be  that  he  shall  enter? 

Stud.  No,  verily  ;  for  there  is  a:i  ancient  maxim  in  the 
law,  that  no  man  shall  take  advantage  in  a  condition,  but 
he  that  is  party  or  privy  to  the  condition  ;f  and  this  man  is 
not  party  or  privy,  wherefore  he  shall  have  no  advantage 
of  it. 

Doct.  Though  he  can  have  no  advantage  of  it  as 
party,  yet  because  it  appeareth  evidently  that  the  intent 
of  the  giver  was,  that  if  he  were  not  payed  of  the  rent, 
that  he  should  have  the:  land,  it  seemeth  that  in  con- 
science he  ought  to  have  it,  though  he  can  not  have  it  by 
the  law. 

Stud.  In  many  cases  the  intent  of  the  party  is  void  to  all 
intents,  if  it  be  not  grounded  according  to  the  law  \\  and 
therefore  if  a  man  make  a  lease  to  another  for  term  of  life, 
and  after  of  his  mere  motion  he  confirm eth   his  estate  for 

♦Ante,  77. 

fLitt.,  sec.  347;  Dyer,  6,  pi.  2;  post.  170. 

J  2  Vezej,  24S;  ante,  65. 


160  Doctor   and  Student. 

term  of  life  to  remain  after  his  death  to  another,  and  to  his 
heirs  ;  in  this  case  that  remainder  is  void  in  law  and  con- 
science :  lor  by  the  law  there  can  no  remainder  depend 
upon  an  estate,  but  that  the  same  estate  beginneth  at  the 
same  time  that  the  remainder  doth  ;*  and  in  this  case  the 
estate  began  before,  and  the  confirmation  enlarged  not  his 
estate,  nor  gave  him  no  new  estate.  But  if  a  lease  be 
made  to  a  man  for  term  of  another  man's  life,  and  after  the 
lessor  only  of  his  mere  motion  confirmeth  the  land  to  the 
lessee  for  the  term  of  his  own  life,  the  remainder  over  in 
fee  ;  that  is  a  good  remainder  in  the  law  and  conscience. 
And  so  methinketh  the  intent  of  the  party  shall  not  be  re- 
garded in  this  case. 

Doct.  And  in  the  first  case  that  thou  hast  put,  methinketh 
though  it  pass  not  by  way  of  remainder  of  that,  yet  shall  it 
pass  as  by  the  way  of  grant  of  the  reversion  ;f  for  every 
deed  shall  be  taken  most  strong  against  the  grantor,  and 
the  taking  of  a  deed  in  this  case  is  an  attornment  in  itself. 

Stud.  That  cannot  be,  for  he  in  the  remainder  is  not 
party  to  the  deed,  and  therefore  it  cannot  be  taken  by  the 
way  of  grant  of  the  reversion  ;  for  no  grant  can  be  made 
but  to  him  that  is  party  to  the  deed,  except  it  be  by  way  of 
remainder. %  And  therefore  if  a  man  make  a  lease  for 
term  of  life,  and  after  the  lessor  grant  to  a  stranger  that  the 
tenant  for  term  of  life  shall  have  the  land  to  him,  and  to 
his  heirs,  that  grant  is  void,  if  it  be  made  only  of  his  mere 
motion  without  recompence.  And  in  like  wise,  if  a  man 
make  a  lease  lor  term  of  life,  and  after  grant  the  reversion 
to  one  for  term  of  life,  the  remainder  over  in  lee,  and  the 
tenant  attorneth  to  him  that  hath  the  estate  for  term  of  life 
only,  intending  that  he  only  should  have  advantage  of  the 
grant  ;§    his  intent  is  void,  and  both  ||    shall  take  advanlag  : 

*2  B.  C.  167. 
|-2  Roll.  A br.  56. 

%2  Roll.  Abr.68;  Hob.  313;  Ilutt.  88. 
§  Co.  Litt.  310 

||  Attornment  is  now  almost  rendered  unnecessary  by  statute'.  The  act 
of  4  Ann.,  c  16,  s.  9,  enacts   that  all  grants   or  conveyances,  by  fine  or 


Dialogue    II. —  Chap.    20.  161 

thereof,  and  the  attornment  shall  be  taken  good,  according 
to  the  grant.  And  so  in  this  case,  though  the  feoffor  in- 
tended, that  if  the  rent  were  not  payed,  that  the  stranger 
should  enter;  yet  because  the  law  giveth  him  no  entry  in 
that  case,  that  intent  is  void,  and  the  same  stranger  shall 
neither  enter  into  the  land  by  law  nor  conscience. 

Docl.  What  shall  then  be  done  with  that  land,  as  thou 
thinkest,  alter  the  condition  broken  ? 

Stud.  I  think  the  feoffor  in  this  case  may  lawfully  re- 
enter ;  tor  when  the  feoffment  was  made  upon  condition 
that  the  feoffee  would  pay  a  rent  to  a  stranger,  in  those 
words  is  concluded  in  the  law,  that  if  the  rent  were  not 
paid  to  the  stranger,  that  the  feoffor  should  re-enter ;  for 
those  words,  upon  condition,  imply  so  much  in  the  law, 
though  it  be  not  expressed.  And  then  when  the  feoffor 
went  farther,  and  said  that  if  the  rent  were  not  paid,  that 
the  stranger  should  enter,  those  words  were  void  in  the 
law  ;  and  so  the  effect  of  the  deed  stood  upon  the  first 
words,  whereby  the  feoffor  may  re-enter  in  law  and  con- 
science :  but  if  the  first  words  had  not  been  conditional,  I 
would  have  holden  it  the  greater  doubt. 

Doct.  I  pray  thee  put  the  case  thereof  in  certain  with 
such  words  as  he  not  conditional,  that  I  may  the  better  per- 
ceive what  thou  meanest  therein. 

otherw  se,  of  any  manors,  rents,  reversions,  or  remainders,  shall  be  effec- 
tual without  the  attornment  of  any  of  the  tenants,  but  it  provides  that  no 
tenant  shall  he  prejudiced  by  payment  of  rent  to  any  grantor  or  conusor, 
or  by  breach  of  any  condition  tor  non-payment  of  rent,  before  notice  shall 
be  given  to  him  of  such  grant  by  the  conusee  or  grantee.  And  the  stat- 
ute 11  (jeo.  1.  c.  10.  s.  11,  after  reciting  that  the  possession  of  estates  is 
rendered  very  precarious  by  the  frequent  and  fraudulent  practice  of  tenants 
in  attorning  t<>  strangers,  who  claim  title  to  the  estates  of  their  respective 
landlords  or  lessors,  who  are  thereby  put  out  of  the  poss  JSsion  of  their 
respective  estates,  and  put  t.>  the  difficulty  of  recovering  the  same  al  law, 
enacts  that  all  such  attornments  shall  he  void,  and   the   poss  ■  ■!  al- 

tered; but  it  provides  that  the  said  act  shall  not  extend  to  affect  any  at- 
tornment made  pursuant  to  any  judgment  at  law.  or  decree,  or  order  of  a 
court  of  equity,  or  made  with  the  privity  and  consent  of  the  landlord  or 
landlord-,  lessor  or  Lessors,  or  to  any  mortgagees  after  the  mortgage  is 
become  forfeited. 
II 


i  62  Doctor  and   Student. 


Chap.  XXI. —  The  nineteenth  question  of  the  student. 

A  man  maketh  a  feoffment  by  deed  indented,  and  by  the 
same  deed  it  is  agreed,  that  the  feoffee  shall  pay  to  A.  B. 
and  to  his  heirs,  a  certain  rent  yearh/  at  certain  days,  and 
that  if  he  pay  not  the  rent,  then  it  is  agreed  that  A.  B.  or 
his  heirs,  shall  enter  into  the  land  ;  and  after  the  feoffee 
payeth  not  the  rent  ;  then  the  question  is,  who  ought  in 
conscience  to  have  this  land  and  rent? 

Doct.  Ere  we  argue  what  conscience  will,  let  us  know 
first  what  the  law  will  therein. 

Stud.  I  think  that  by  the  law  neither  the  feoffor  ne  yet  I 
the  said  A.  B.  shall  ever  enter  into  the  land  in  this  case  for 
non-payment  of  the  rent,  tor  there  is  no  re-entry  in  this 
case  given  to  the  feoffor  for  not  payment  of  the  rent,  as 
there  is  in  the  case  next  betore,  and  the  entry  that  is  given 
to  the  said  A.  B.  for  not  payment  thereof  is  void  in  the  law, 
because  he  is  estrange  to  the  deed,  as  it  appeareth  also  in 
the  next  chapter  before.*  And  therefore  methinketh  that 
the  greatest  doubt  in  this  case  is,  to  see  what  use  this  feoff- 
ment shall  be  taken. 

Doct.  There  appeareth  in  this  case  as  thou  hast  put  it, 
no  consideration  ne  recompence  given  to  the  feoffor,  where- 
upon an)'  use  may  be  derived  ;  and  if  the  case  be  so  indeed, 
and  the  feoffor  declared  never  his  mind  therein,  to  what  use 
shall  it  then  be  taken? 

Stud.  I  think  it  shall  be  taken  to  be  to  the  use  of  the 
feoffee,  as  long  as  lie  payeth  the  rent :  for  there  is  no  rea- 
son why  the  feoffee  should  be  busied  with  payment  of  the 
rent,  having  nothing  for  his  labour:  ne  it  may  not  conven- 
iently be  taken  that  the  intent  of  the  feoffor  was  so,  except 
he  expressed  it ;  and  then  it  must  be  taken  that  he  intended 
to  recompence  the  feoffee  for  the  business  that  he  should 
have  in  the  payment  over,  and  by  the  words  following  his 
intent  it  appeareth  to  be  so,  as  methinketh  ;  for  if  the  rent 
were  not  payed,  he  would  that  A.  B.  should  enter,  and  so 

*  Co.  Litt.  213 ;  Dyer,  127;   ante,  160;  Cro.  Eliz.  727. 


Dialogue    II. — Chap.  21.  163 

it  seemeth  he  intended  not  to  have  any  use  himself.  And 
thus,  me  seemeth,  this  case  should  vary  from  the  common 
case  of  uses  ;  that  is  to  say,  if  a  man  seised  of  land  make 
a  feoffment  thereof,  and  it  appeareth  not  to  what  use  the 
feoffment  was  made,  ne  it  is  not  upon  any  bargain  or  other 
recompence,  then  it  shall  be  taken  to  be  to  the  use  of  the 
feoffor  ;*  except  the  contrary  can  be  proved  by  some  bar- 
gain, or  other  like  :  or  that  his  intent  at  the  time  of  the  de- 
livery of  seisin  was  expressed  that  it  should  be  to  the  use 
of  the  feoffee,  or  of  some  other;  and  then  it  shall  go  ac- 
cording to  his  intent :  but  in  this  case  methinketh  it  shall 
be  taken  that  his  intent  was,  that  it  should  first  be  to  the  use 
of  the  feoffee,  for  the  cause  before  rehearsed,  except  the 
contrary  can  be  proved  ;  and  so  that  knowledge  of  the  in- 
tent of  the  feoffor  is  the  greatest  certainty  for  knowledge  of 
the  use  in  this  case,  as  me  seemeth.  But  when  the  feoffor 
goeth  farther,  and  saith,  That  if  the  rent  be  not  paid,  that 
then  the  said  A.  B.  should  enter  into  the  land  ;  then  it  ap- 
peareth  that  his  intent  was  that  the  rent  should  cease,  and 
that  A.  B.  should  enter  into  the  land  :  and  though  he  may 
not  by  those  words  enter  into  the  land  after  the  rules  of  the 
law,  and  to  have  freehold,  yet  those  words  seem  to  be  suf- 
ficient to  prove  that  the  intent  of  the  feoffor  was  that  he 
should  have  the  use  of  the  land  :f  for  silh  he  had  the  rent 
to  his  own  use,  and  not  to  the  use  of  the  feoffor;  so  it 
seemeth  he  shall  have  the  use  ot  the  land  that  is  assigned 
to  him  for  the  payment  of  the  rent. 

Doct.  But  I  am  somewhat  in  doubt,  whether  he  had  the 
rent  to  his  own  use  :  for  the  intent  of  the  feoffor  might  be, 
that  he  should  pay  the  rent  for  him  to  some  other,  or  some 
other  use  might  be  appointed  thereof  by  the  feoffor. 

Stud.  It"  such  an  intent  can  be  proved,  then  the  intent 
must  be  observed  :  but  we  be  in  this  case  to  wit  to  what  use 
it   shall  be  taken,    if   the   intent  of   the   feoffor  cannot  be 


Br.  Feoffment  to  uses,  pi.  10;  Shop.  Touch.  477:  And.  37,  pi.  95;  post. 

163. 

t  Post    170,  1 7 J. 


164  Doctor   and  Student. 

proved  :*  and  then  methinketh  it.  cannot  be  otherwise  taken, 
but  it  shall  be  to  the  use  of  him  to  whom  it  should  be  paid. 
For  though  it  be  called  a  rent,  yet  it  is  no  rent  in  law,  rte  in 
the  law  he  shall  never  have  remedy  for  it,  though  it  were 
assigned  to  him,  and  to  his  heirs,  without  condition,  neither 
by  distress,  by  assise,  by  writ  of  annuity,  nor  otherwise  ; 
but  he  shall  be  driven  to  sue  in  the  Chancery  for  his  rem- 
edy :|  and  then  when  he  sueth  in  the  Chancery,  he  must 
surmise  that  he  ouffht  to  have  it  bv  conscience,  and  that  he 
can  have  no  remedy  for  it  in  the  law.  And  then,  sith  he 
hath  no  remedy  to  come  to  it  but  by  the  way  of  conscience, 
it  seemeth  it  shall  be  taken  that  when  he  hath  recovered  it, 
that  lie  ought  to  have  it  in  conscience,  and  that  to  his  own 
use,  without  the  contrary  can  be  proved  :  and  if  the  con- 
trary can  be  proved,  and  that  the  intent  of  the  feoffor  was, 
that  he  should  dispose  it  for  him  as  he  should  appoint,  then 
hath  he  the  rent  in  use  to  another  use,  and  so  one  use  should 
be  depending  upon  another  use,  which  is  seldom  seen,  and 
shall  not  be  intended  till  it  be  proved  :  and  so,  sith  no  mat- 
ter is  here  expressed,  methinketh  the  rent  shall  be  taken  to 
be  to  the  use  of  him  that  it  is  paid  to,  and  the  land  in  like 
wise  that  is  appointed  to  him  for  not  payment  of  the  said 
rent  shall  be  also  to  his  use  :  how  thinkest  thou  will  con- 
science serve  therein  ? 

Doct.  I  think  that  as  thou  takest  the  law  now,  that  con- 
science (in  this  case)  and  the  law  be  all  one:  for  the  law 
seercheth  the  same  thing  in  this  case,  to  know  the  case  that 
conscience  doth,  that  is  to  say,  the  intent  of  the  feoffor. 
And  therefore  I  would  move  thee  farther  in  one  thing. 

Stud.  What  is  that? 

Doct.  That  sith  the  intent  of  the  feoffor  shall  be  so  much 
regarded  in  this  case,  why  it  ought  not  also  to  be  as  much 
regarded  in  the  case  that  is  in  the  last  chapter  next  belore 
this,  where  the  words  be  conditional,  and  give  the  feoffor 
a  title  to  re-enter.      For  methinketh,  that  though  the  feoffor 

Slicp.  Touch.  80;  post.  172. 
t  Litt.,  sec.  345. 


Dialogue    II. — Chap.  22.  165 


ma)'  in  that  case  re-enter  for  the  condition  broken,  that  yet 
alter  this  entry  he  shall  be  seised  of  the  land  after  his  entry 
to  the  use  of  him  to  whom  the  land  was  assigned  by  the 
said  indenture  lor  lack  of  payment  of  the  rent,  because  the 
intent  of  the  feoffor  shall  be  taken  to  be  so  in  that  case  as 
well  as  in  this.  And  I  pray  thee  let  me  know  thy  mind 
what  diversity  thou  pattest  between  them. 

Stud.  Thou  drivest  me  now  to  a  narrow  diversity,  but 
yet  I  will  answer  thee  therein  as  well  as  I  can. 

Doc/.  But  first,  ere  thou  shew  me  that  diversity,  I  pray 
thee  shew  me  how  uses  began,  and  why  so  much  land  hath 
been  put  in  use  in  this  realm  as  hath  been. 

Stud.   I  will  with  good-will  say  as  methinketh  therein. 

Chap.  XXII. — How  uses  of  land  first  began,  and  bv  what 
law ;  and  the  cause  why  so  much  land  is  put  in  use. 

Uses  were  reserved  by  a  secondary  conclusion  of  the 
law  of  reason  in  this  manner:  When  the  general  custom 
of  property,  whereby  every  man  knew  his  own  goods  from 
his  neighbours,  was  brought  in  among  the  people,  it  follow- 
eth  ot  reason,  that  such  lands  and  goods  as  a  man  had, 
ought  not  to  be  taken  from  him  but  by  his  assent,  or  by 
order  of  the  law  :  and  then  sith  it  be  so,  that  every  man 
that  hath  lands  hath  hereby  two  things  in  him,  that  is  to 
say,  the  possession  of  the  land,  which  after  the  law  of  Eng- 
land is  called  the  frank-tenement,  or  the  freehold,  and  the 
other  is  authority  to  take  thereby  the  profits  of  the  land  ;* 
wherefore  it  followeth,  that  he  that  hath  land,  and  intend- 
ed) to  give  only  the  possession  and  freehold  thereof  to  an- 
other, and  keep  the  profits  to  himself,  ought  in  reason  and 
conscience  to  have  the  profits,  seeing  there  is  no  law  made 
to  prohibit,  but  that  in  conscience  such  reservation  may  be 
made.f  And  so  when  a  man  maketb  a  feoffment  to  another, 
and  intendeth  that  he  himself  shall   take   the    protits  ;   then 


3  c  r>.  104 

t  GiJb -  Law  oi   t  ses,  17^. 


1 66  Doctor  and  Student. 

the  feoffee  is  said  seised  to  his  use  that  so  enfeoffed  him, 
that  is  to  say,  to  the  use  that  he  shall  have  the  possession 
and  freehold  thereof,  as  in  the  law  ;*  to  the  intent  that  the 
feoffor  shall  take  the  profits,  f  And  under  this  manner,  as  I 
suppose,  uses  of  land  first  began. 

Doct.  It  seemeth  that  the  reserving  of  such  use  is  pro- 
hibited by  the  law  '.%  for  if  a  man  make  a  ieoffment,  and 
reserve  the  profits,  or  any  part  of  the  profit,  as  the  grass, 
wood,  or  such  other;  that  reservation  is  void  in  the  law: 
and  methinketh  it  is  all  one  to  say,  that  the  law  judgeth 
such  a  thing,  if  it  be  done,  to  be  void,  and  that  the  law 
prohibiteth  that  the  thing  shall  not  be  done. 

Stud.  Truth  it  is,  that  such  reservation  is  void  in  the  law, 
as  thou  sayest  :§  and  that  is  by  reason  of  a  maxim  in  the 
law,  that  willeth  that  such  reservation  of  part  of  the  same 
thing  shall  be  judged  void  in  the  law.  But  yet  the  law 
doth  not  prohibit  that  no  such  reservation  shall  be  made, 
but  if  it  be  made  it  judgeth  of  what  effect  it  shall  be  ;  that 
is  to  say,  that  it  shall  be  void  ;  and  so  he  that  maketh  such 
reservation  offendeth  no  law  thereby,  ne  breaketh  no  law 
thereby,  and  therefore  the  reservation  in  conscience  is  good. 
But  if  it  were  prohibit  by  statute  that  no  man  should  make 
such  a  reservation,  ne  that  no  feoffment  of  trust  should  be 
made,  but  that  all  the  feoffments  should  be  to  the  use  of  him 
to  whom  possession  of  the  land  is  given  ;  then  the  reser- 
vation of  such  uses  against  the  statute  should  be  void,  be- 
cause it  were  against  the  law  :  and  yet  such  a  statute  should 
not  be  a  statute  against  reason,  because  such  uses  were  first 
grounded  and  reserved  by  the  law  of  reason  ;  but  it  should 
prevent  the  law  of  reason,  and  should  put  away  the  con- 

*Gilb.  Law  of  Uses,  17S. 

f  As  for  example,  if  a  feoffment  was  made  to  John  at  Stile  and  his  heirs, 
to  the  use  and  behoof  of  William  at  Stile  and  his  heirs,  in  this  case  here- 
tofore John  at  Stile  had  the  estate  and  property  in  the  land;  but  William 
at  Stile  had  and  was  to  have  the  profits  in  equity.  Shep.  Touch.  477; 
jute,  58,  120. 

\  Co.  Litt.  14-:. 

§  Shop.  Touch.  78. 


Dialogue   II. — Chap.  11.  167 

sideration  whereupon  the  law  of  reason- was  grounded  be- 
fore the  statute  made.  And  then  to  the  other  question,  that 
is  to  say,  why  so  much  land  hath  been  put  in  use?  It  will 
be  somewhat  long,  and  peradventure  to  some  tedious,  to 
shew  all  the  causes  particularly  :  but  the  very  cause  why 
the  use  remained  to  the  feoffor,  notwithstanding  his  own 
feoffment  or  fine,  and  sometime  notwithstanding  a  recovery 
against  him,  is  all  upon  one  consideration  alter  the  cause 
and  intent  of  the  gift,  fine  or  recovery,  as  is  aforesaid. 

DocL  Though  reason  may  serve  that  upon  a  feoffment 
a  use  may  be  reserved  to  the  feoffor  by  the  intent  of  the 
feoffor  against  the  form  of  his  gift,  as  thou  hast  said  before  ; 
yet  I  marvel  much  how  an  use  may  be  reserved  against  a 
fine,  that  is  one  of  the  highest  records  that  is  in  the  law, 
and  is  taken  in  the  law  of  so  high  effect,  that  it  should  make 
an  end  of  all  strifes  ;*  or  against  a  recovery,  that  is  ordained 
in  the  law  for  them  that  be  wronged  to  recover  their  right 
by.  And  methinketh,  that  great  inconvenience  and  hurt 
may  follow,  when  such  records  may  Su  lightly  be  avoided 
by  a  secret  intent  or  use  of  the  parties,  and  by  a  nude  and 
bare  averment  and  matter  in  deed,  and  specially  sith 
such  a  matter  in  deed  may  be  alledged  that  is  not  true, 
whereby  may  rise  great  strife  between  the  parties,  and  great 
confusion  and  uncertainty  in  the  law.  But  nevertheless, 
sith  our  intent  is  not  at  this  time  to  treat  of  that  matter,  I 
pray  thee  touch  shortly  some  of  the  causes  why  there  hath 
been  so  many  persons  put  in  estate  of  lands  to  the  use  of 
others  as  there  have  been  ;  for,  as  I  hear  say,  few  men  be  sole 
seised  of  their  own  land. 

Stud.  There  have  been  many  causes  thereof,  of  the  which 
some  be  put  away  by  divers  statutes,  and  some  remain  vet.t 
Wherefore  thou  shalt  understand,  that  some  have  put  their 
land  in  feoffment  secretly,  to  the  intent  that  they  that  have 
right  to  the  land   should   not  know  against  whom   to  bring 

*  Cruise  on  Fines,  4;    ante,  S9- 

X  2  B.  C.  331,  322  :   Gilb.  Law  ot  Uses.  72,  73;   stat  7  Rie.   2,  c.  9;  4  H 
4,  c.  7;  11  H.  6,  c.  31  ;  stat<  27  H-  S.  c.  10. 


1 68  Doctor   and   Student. 

their  action,  and  that  is  somewhat  remedied  by  divers  stat- 
utes that  give  actions  against  pernors  and  takers  of  the 
profits.  And  sometime  such  feoffments  of  trust  have  been 
made  to  have  maintenance  and  bearing  of  their  feoffees, 
which  peradventure  were  great  lords  or  rulers  in  the 
country  :*  and  therefore  to  put  away  such  maintenance, 
treble  damages  be  given  bv  statute  against  them  that  make 
such  feoffments  for  maintenance.  And  sometime  they  were 
made  to  the  use  of  mortmain,  which  might  then  be  made 
without  forfeiture,  though  it  were  prohibited  that  the  free- 
hold might  not  be  given  in  mortmain  ;  but  that  is  put  away 
by  the  statute  of  R.  2.f  And  sometime  they  were  made 
to  defraud  the  lords  of  wards,  reliefs,  heriots,  and  of  the 
lands  of  their  villeins  :  but  those  points  be  put  away  by 
divers  statutes  made  in  the  time  of  king  H.  the  7th.  Some- 
time they  were  made  to  avoid  executions  upon  a  statute- 
staple,  statute-merchant,  and  recognisance  :  and  remedy 
is  provided  for  that,  that  a  man  shall  have  execution  of  all 
such  lands  as  any  person  is  seised  of  to  the  use  of  him  that 
is  so  bound  at  the  time  of  execution  sued,  in  the  19th  year 
of  H.  7.+  And  yet  remain  feoffments,  fines,  and  recover- 
ies in  use  for  many  other  causes,  in  manner  as  many  as 
there  did  before  the  said  estatute.  And  one  cause  why  they 
be  yet  thus  used  is,  to  put  away  tenancy  by  the  courtesy  and 
titles  of  dower. §  Another  cause  is,  for  that  the  lands  in 
use  shall  not  be  put  in  execution  upon  a  statute-staple,  stat- 
ute-merchant, nor  recognisance,  but  such  as  be  in  the  hands 
of  the  recognisor  at  the  time  of  the  execution  sued.  And 
sometime  lands  be  put  in  use,  that  they  should  not  be  put  in 
execution  upon  a  writ  of  extendi  Jacias  advalentiam.  And 
sometime  such  uses  be  made  that  he  to  whose  use,  etc.,  may 

•Gilb.  Law  of  Uses,  72,  73. 

t2  B.C.  272;  Wood's  Inst.  255;  Popham,  73;  Bac  Use  of  the  Law, 
153  ;   Gilb.  Law  of  Uses,  38. 

:  See  stat.  27  II.  8,  c.  10 

:j  Perk.,  sec.  463;  3  Bac.  Abr.  221  ;  Sbep.  Touch.  479;  1  Co.  131,  Chud- 
leigh'g  Case. 


Dialogue    II. — Chap.   22.  169 

declare  his  will  thereon  :*  and  sometime  for  surity  of  divers 
covenants  in  indentures  of  marriage  and  other  bargains. 
And  these  two  last  articles  be  the  chief  and  principal  cause 
why  so  much  land  is  put  in  use.  Also  lands  in  use  be  not 
assets  neither  in  a  Formcdon,  nor  in  an  action  of  debt 
against  the  heir  :f  ne  they  shall  not  be  put  in  execution  by 
an  elegit  sued  upon  a  recovery,  as  some  men  say.f  And 
these  be  the  very  chief  causes,  as  I  now  remember,  why  so 
much  land  standeth  in  use  as  there  doth  :§  and  all  the  said 
uses  be  reserved  by  the  intent  of  the  parties  understood  or 
agreed  between  them,  and  that  many  times  directly  against 
the  words  of  the  feoffment,  fine,  or  recovery  :  and  that  is 
done  by  the  law  of  reason,  as  is  aforesaid. 

Doc/.  May  not  a  use  be  assigned  to  a  stranger  as  well  as 
to  be  reserved  to  the  feoffor,  if  the  feoffor  so  appointed  it 
upon  his  feoffment? 

Stud.  Yes,  as  well,  and  in  like  wise  to  the  feoffee,  and 
upon  that  a  free  gift,  without  any  bargain  or  recompence, 
if  the  feoffor  so  will. 

Doct.  What  if  no  feoffment  be  made,  but  that  a  man 
grant  to  his  feoffee,  that  from  henceforth  he  shall  stand 
seised  to  his  own  use?  Is  not  that  use  changed,  though 
there  be  no  recompence? 

Stud.   I   think  yes,  for  there  was  an  use  in  esse  before 

*  2  B.  C.  32S. 

1 1  Cham.  Rep.  14S. 

*  Shep    Touch.  478;  Gilb.  Law  of  Uses,  37. 

§  It  was  evidently  the  intention  of  the  legislature  when  they  made  the 
statute  27  II.  S,  c.  10,  to  abolish  uses  by  transferring  the  possession  to 
the  use;  but  the  strict  construction  of  that  statute  defeated  the  intent  of 
it,  and  gave  rise  to  trusts  of  land  too  tedious  to  be  here  enumerated,  ex- 
actly of  the  same  nature  as  uses  were  at  Common  law.  Shep.  Touch 
Allen,  t 5  :  Stile.  40.  Of  these  uses,  which  may  properly  be  called  chan- 
cery trusts,  intails  may  b.'  made,  fines  levied,  recoveries  suffered, and  hus- 
bands be  tenants  by  the  courtesy.  In  short,  they  are  governed  nearly  by 
the  same  rules,  and  liable  to  every  charge  in  equity  which  the  legal  own- 
ership is  subject  to  in  law.  2  Wms.  Rep  .  •  |  1,  in  the  case  of  Sutton  against 
Sutton.  They  may  be  aliened,  or  liable  to  debt-,  to  leases  and  other  in- 
cumbrances. They  have  not  yet  indeed  been  held  subject  to  dower,  nor 
are  they  liable  to  escheat  to  the  lord- 


170  Doctor  and  Student. 

the  gift,  which  he  might  as  lawfully  give  away,  as  he 
might  the  land  if  he  had  it  in  possession.* 

Doct.  And  what  if  a  man  being  seised  of  land  in  fee, 
grant  to  another  of  his  mere  motion,  without  bargain  or  re- 
compence,  that  he  from  thenceforth  shall  be  seised  to  the 
use  of  the  other  ;  is  not  that  grant  good  ? 

Stud.  I  suppose  that  it  is  not  good ;  for,  as  I  take  the 
law,  a  man  cannot  commence  an  use  but  by  livery  of  seisin, 
or  upon  a  bargain,  or  some  other  recompence.f 

Doct.  I  hold  me  contented  with  that  thou  hast  said  in 
this  chapter  for  this  time  ;  and  I  pray  thee  shew  me  what 
diversity  thou  puttest  between  those  two  cases  that  thou 
hast  before  rehearsed  in  the  20th  chapter,  and  in  the  21st 
chapter  of  this  present  book. 

Stud.   I  will  with  good-will. 

Chap.  XXIII. —  The  diversity  betzveen  two  cases  hereafter 
following,  whereof  one  is  -put  in  the  20th  chapter,  and 
the  other  in  the  21st  chapter  of  this  present  book. 

The  first  case  of  the  said  two  cases  is  this. %  A  man 
maketh  a  feoffment  by  a  deed  indented,  upon  a  condition 
that  the  feoffee  shall  pay  certain  rent  yearly  to  a  stranger, 
etc.,  and  if  he  pay  it  not,  that  it  shall  be  lawful  to  the 
stranger  to  enter  into  the  land.  In  this  case,  I  said  before 
in  the  20th  chapter,  that  the  stranger  might  not  enter,  because 
that  he  was  not  privy  unto  the  condition.  But  I  said,  that 
in  that  case  the  feoffor  might  lawfully  re-enter  by  the  first 
words  of  the  indenture,  because  they  imply  a  condition  in 
the  law,  and  that  the  other  words,  that  is  to  say,  that  the 
stranger  should  enter,  be  void  in  law  and  conscience.  And 
therefore  I  said  farther  that  when  the  feoffor  had  re-entered, 
that  lie  was  seised  of  the  land  to  his  own  use,  and  not  to 
the  use  of  the  stranger,  though  his  intent  at  the  making  of 
the  feoffment  were,  that  the  stranger,  after  his  entry,  should 

Post    171. 
tShep.  Touch.  485  . 
jPerk.,  sec.  531;  Co.  Litt.  214;   2  Inst.  516;  ante,  159. 


Dialogue   II. — Chap.   23.  171 


have  had  the  land  to  his  own  use,  if  he  might  have  entered 
by  the  law.  And  the  cause  why  I  think  that  the  feoffor 
was  seised  in  that  case  to  his  own  use,  I  shall  shew  thee 
afterward.  The  second  case  is  this;  a  man  maketh  a  feoff- 
ment in  fee,  and  it  is  agreed  upon  the  feoffment,  that  the 
feoffor  shall  pay  a  yearly  rent  to  a  stranger,  and  if  he  pay 
it  not,  that  then  the  stranger  shall  enter  into  the  land.*  In 
this  case  I  said,  as  it  appeareth  in  the  said  twenty-first 
chapter,f  that  if  the  feoffor  paid  not  the  rent,  that  the 
stranger  should  have  the  use  of  the  land,  though  he  may 
not  by  the  rules  of  the  law  enter  into  the  land.  And  the 
diversity  between  the  cases  methinketh  to  be  this.  In  the 
first  case  it  appeareth,  as  I  have  said  before  in  the  said 
twentieth  chapter, |  that  the  feoffor  might  lawfully  re-enter 
by  the  law  for  not  payment  of  rent ;  and  then  when  he 
entered  according,  he  by  that  entry  avoided  the  first  liverv 
of  seisin,  insomuch  that  after  the  re-entry  he  was  seised  of 
the  land  of  like  estate  as  he  was  before  the  feoffment  ;§  and 
so  remaineth  nothing  whereupon  the  stranger  might  ground 
his  use,  but  only  the  bare  grant  or  intent  of  the  feoffor,  when 
he  gave  the  land  to  the  feoffee  upon  condition  that  he  should 
pay  the  rent  to  the  stranger,  and  if  not,  that  it  should  be 
lawful  to  the  stranger  to  enter  :  for  the  teoffment  is  avoided 
by  the  re-entry  of  the  feoffor,  as  I  have  said  before  :  and  as 
I  said  in  the  last  chapter,  as  I  suppose,  a  nude  or  bare 
grant  of  him  that  is  seised  of  land  is  not  sufficient  to  begin 
an  use  upon. 

Doct.  A  bare  grant  may  change  an  use,  as  thou  thyself 
agreed  in  the  last  chapter  :  why  then  may  not  an  use  as  well 
begin  upon  a  bare  grant? 

Stud.  When  a  use  is  in  esse,  he  that  hath  the  use  may 
of  his  mere  motion  give  it  away,  if  he  will,  without  recom- 
pence,  as  he  might  the  land,  if  he  had   it  in  possession  :|| 

*  Ante,  16:,  104. 

t  Post.  172;  ante,  163. 

%  Ante,  161. 

§  Post.  172,  173. 

;i  Ante,   169. 


172  Doctor  and  Student. 

but  I  take  it  for  a  ground,  that  he  cannot  so  begin  an  use 
without  livery  of  seisin,  or  upon  a  recompence  or  bargain. 
And  that  there  is  such  a  ground  in  the  law,  that  it  may  not 
so  begin,  it  appeareth  thus.  It  hath  been  alway  holden  for 
law,  that  if  a  man  make  a  deed  of  feoffment  to  another,  and 
deliver  the  deed  to  him  as  his  deed,  that  in  this  case  he  to 
whom  the  deed  is  delivered  hath  no  title  ne  meddling  with 
the  land  afore  livery  of  seisin  be  made  to  him,  but  only  that 
he  may  enter  and  occupy  the  land  at  the  will  of  the  feoffor.* 
And  there  is  no  book  saith  that  the  feoffee  in  that  case  is 
seised  thereof,  before  livery  to  the  use  of  the  feoffee.  And 
in  like  wise,  if  a  man  make  a  deed  of  feoffment  of  two  acres 
of  land  that  lie  in  two  shires,  intending  to  give  them  to  the 
feoffee,  and  maketh  livery  of  seisin  in  the  one  shire,  and 
not  in  the  other  ;f  in  this  case  it  is  commonly  holden  in 
books,  that  the  deed  is  void  to  the  acre,  where  no  jivery  is 
made,  except  it  lie  within  that  view,  save  only  that  he  may 
enter  and  occupy  at  will,  as  is  aforesaid  :$  and  there  is  no 
book  that  saith  that  the  feoffee  should  have  the  use  of  the 
other  acre  ;  for  if  an  use  passed  thereby,  then  were  not  the 
deed  void  unto  all  intents  ;  and  yet  it  appeareth  by  the  words 
of  the  deed,  that  the  feoffor  gave  the  lands  to  the  feoffee, 
but  for  lack  of  livery  of  seisin  the  gift  was  void  :§  and  so 
methinketh  it  is  here,  without  livery  of  seisin  be  made  ac- 
cording. But  in  the  second  case  of  the  said  two  cases,  the 
feoffor  may  not  re-enter  for  non-payment  of  the  rent,  and 
so  the  first  livery  of  seisin  continueth  and  standeth  in  effect; 
and  thereupon  the  first  use  may  well  begin  and  take  effect 
in  the  stronger  of  the  land,  when  the  rent  is  not  paid  unto 
him  according  to  the  first  agreement.  And  so  methinketh 
that  in  the  first  case;  ||  the  use  is  determined,  because  the 
livery  of  seisin  whereupon  it  commenced  is  determined  : 
and    that  in   the  second  case  If  the  use  of  the   land   taketh 

Sliep.  Touch.  2S1. 
fPcrk.,  sec.  127;   2  Roll.  Abr.  11. 
X  Shop.  Touch.  281  ;   ante,  171. 
§  Ante,  23. 
||  Ante,  171  • 
\  Ante,  163,  170. 


Dialogue    II. — Chap.    23.  173 

effect  in  the  stranger  for  not  payment  of  the  rent  by  the 
grant  made  at  the  first  liver)-,  which  yet  continueth  in  his 
effect :  and  this  methinketh  is  the  diversity  between  the 
cases. 

Doct.  Yet,  notwithstanding  the  reason  that  thou  hast 
made,  methinketh  that  if  a  man  seised  of  lands  make  a  gift 
thereof  by  a  mule  promise,  without  any  livery  of  seisin,  or 
recompence  to  him  made,  and  grant  that  he  shall  be  seised 
to  his  use,  that  though  the  promise  be  void  in  law,  that  yet 
nevertheless  it  must  hold  and  stand  good  in  conscience,  and 
by  the  law  of  reason.  For  one  rule  of  the  law  of  reason 
is,  That  we  may  do  nothing  against  the  truth  :  and  sith  the 
truth  is,  that  the  owner  of  the  ground  hath  granted  that  he 
shall  be  seised  to  the  use  of  the  other,  that  grant  must 
needs  stand  in  effect,  or  else  there  is  no  truth  in  the  grantor. 

Stud.  It  is  not  against  the  truth  of  the  grantor  in  this 
case,  though  by  the  grant  he  be  not  seised  to  the  use  of  the 
other;  but  it  proveth  that  he  hath  granted  that  the  law  will 
not  warrant  him  to  grant,  wherefore  his  grant  is  void.  But 
if  the  grantor  had  gone  farther  and  said,  That  he  would 
also  sutler  the  other  to  take  the  profits  of  the  lands  without 
lett  or  other  interruption,  or  that  he  would  make  him  es- 
tate in  tin:  laud  when  he  should  be  required  :  then  I  think 
in  those  cases  he  were  bound  in  conscience,  by  that  rule 
of  the  law  of  reason  that  thou  hast  remembered,  to  perform 
them,  if  he  intend  to  be  bounden  by  his  promise  ;  for  else 
he  should  go  against  his  own  truth,  ami  against  his  own 
promise.  But  yet  it  shall  make  no  use  in  that  case,  nor  in- 
to whom  the  promise  is  made  shall  have  no  action  in  the  law 
upon  that  promise',  though  it  be  not  performed  :*  for  it  is 
called  in  the  law  a  nude,  or  naked  promise.  And  thus, 
methinketh,  that  in  the  first  casef  of  the'  said  two  cases,  the 
grant  is  now  avoided  in  the'  law  by  the  re-entry  of  the 
feoffor,  and  that  the  feoffor  is  not  bounden  by  his  grant. 
neither  in  law   nor  conscience  :  but  in  that  second  case   he 


♦Post.  174;  Burr.  Rep.,  part  4,  vol.  3. 
f  Ante,  171,  172. 


Doctor  and  Student. 


is  bound,  so  that  the  use  passeth  from  him,  as  I  have  said 
before. 

Docl.  I  hold  me  content  with  thy  conceit  for  this  time, 
but  I  pray  thee  shew  me  somewhat  more  at  large  what  is 
taken  for  a  nude  contract,  or  naked  promise,  in  the  laws  of 
England,  and  where  an  action  may  lie  thereupon,  and 
where  not. 

Stud.   I  will  with  good-will  say  as  methinketh  therein. 

Chap.  XXIV. —  What  is  a  nude  contract,  or  naked  -prom- 
ise, after  the  laws  of  England,  and  -whether  any  action 
may  lie  thereon. 

First,  it  is  to  be  understood,  that  contracts  be  grounded 
upon  a  custom  of  the  realm,  and  by  the  law  that  is  called 
Jus  gentium,  and  not  directly  by  the  law  of  reason:*  for 
when  all  things  were  in  common,  it  needed  not  to  have  con- 
tracts, but  after  property  was  brought  in,  they  were  right 
expedient  to  all  people,  so  that  a  man  might  have  of  his 
neighbour  that  he  had  not  of  his  own  ;  and  that  could  not 
be  lawfully  but  by  his  gift,  by  way  of  lending,  concord,  or 
by  some  lease,  bargain,  or  sale;  and  such  bargains  and 
sales  be  called  contracts,  and  be  made  by  assent  of  the  par- 
ties upon  agreement  between  them,  of  goods  or  lands,  for 
money,  or  for  other  recompence,  but  only  of  money  usual, 
for  money  usual  is  no  contract.  And  also  a  concord  is 
properly  upon  an  agreement  between  the  parties,  with 
divers  articles  therein,  some  rising  on  the  one  part,  and 
some  on  the  other.  As  if  John  at  Stile  letteth  a  chamber 
to  Henry  Hart,  and  it  is  farther  agreed  between  them,  that 
the  said  Henry  Hart  should  go  to  hoard  with  the  said  John 
at  Stile,  and  the  said  Henry  Hart  to  pay  for  the  chamber 
and  boarding  a  certain  sum,  etc.,  this  is  properly  called  a 
(  Uncord;  but  it  is  also  a  contract,  and  a  good  action  lieth 
upon  it.  Ilowbeit  it  is  not  much  argued  i:i  the  laws  of 
England  what  diversity  is  between  a  contract,  a  concord,  a 

f  Ante,  61. 


Dialogue    II. — Chap.  24.  175 


promise,  a  gift,  a  loan,  or  a  pledge,  a  bargain;  a  covenant, 
or  such  other.  For  the  intent  of  the  law  is  to  have  the  ef- 
fect of  the  matter  argued,  and  not  the  terms.  And  a  nude 
contract  is,  when  a  man  maketh  a  bargain,  or  a  sale  of  his 
goods  or  lands,  without  any  recompence  appointed  for  it  :* 
as  if  I  say  to  another,  I  sell  thee  all  my  land,  or  else  my 
goods,  and  nothing  is  assigned  that  the  other  shall  give  or 
pay  for  it  ;  this  is  a  nude  contract,  and,  as  I  take  it,  it  is 
void  in  the  law  and  conscience.!  And  a  nude  or  naked 
promise  is,  where  a  man  promiseth  another  to  give  him  cer- 
tain money  such  a  day,  or  to  build  an  house,  or  to  do  him 
such  certain  service,  and  nothing  is  assigned  for  the  monev. 
for  the  building,  nor  for  the  service  ;  these  be  called  naked 
promises,  because  there  is  nothing  assigned  why  they 
should  be  made  ;  and  I  think  no  action  lieth  in  those  cases, 
though  they  be  not  performed.  Also  if  I  promise  to  another 
to  keep  him  such  certain  goods  safely  to  such  a  time,  and 
after  I  refuse  to  take  them,  there  lieth  no  action  against  me 
for  it.  But  if  I  take  them,  and  after  they  be  lost  or  impaired 
through  my  negligent  keeping,  there  an  action  lieth.  i 

Doct.  But  what  opinion  hold  they  that  be  learned  in  the 
law  of  England  in  such  promises  that  be  called  naked  or 
nude  promises?  Whether  do  they  hold  that  they  that 
make  the  promise  be  bounden  in  conscience  to  perform 
their  promise,  though  they  cannot  be  compelled  thereto  by 
the  law,  or  not. 

Stud.  The  books  of  the  law  of  England  entreat  little 
thereof,  for  it  is  left  to  the  determination  of  doctors  ;  and 
therefore  I  pray  thee  shew  me  somewhat  now  of  thy  mind 
therein,  and  then  I  shall  shew  thee  somewhat  therein  of  the 
minds  of  divers  that  be  learned  in  the  law  of  the  realm? 

Doct.  To  declare  the  matter  plainly  alter  the  saving  of 
doctors,  it  would  ask  a  long  time,  and  therefore  I  will  touch 
it   briefly,    to   give    thee   occasion    to   desire   to    hear   more 

•Ante,  175;  Dyer,  336. 

f  2  13.  C.  44^;   Salk.  129,  24;    1  Roll.  Abr.  9,  10;   1  Danv.  Abr.  3.:. 

{Lord  Rhviu.  909;   12  Mod.  4S7. 


176  Doctor   and   Student. 


therein  hereafter.  First  thou  shalt  understand,  that  there 
is  a  promise  that  is  called  an  Advozv,  and  that  is  a  promise 
made  to  God  ;  and  he  that  doth  make  such  a  vow  upon  a 
deliberate  mind,  intending  to  perform  it,  is  bound  in  con- 
science to  do  it,  though  it  be  only  made  in  the  heart, 
without  pronouncing  of  words.  And  of  other'  promises 
made  to  a  man  upon  a  certain  consideration,  if  the  promise 
be  not  against  the  law,  as  if  A.  promise  to  give  B.  20/.  be- 
cause he  hath  made  him  such  a  house,  or  hath  lent  him 
such  a  thing,  or  other  such  like,  I  think  him  bound  to  keep 
his  promise.*  But  if  his  promise  be  so  naked,  that  there  is 
no  manner  of  consideration  why  it  should  be  made,  then  I 
think  him  not  bound  to  perform  it :  for  it  is  to  suppose  that 
there  were  some  error  in  the  making  of  the  promise.  But 
if  such  a  promise  be  made  to  an  university,  to  a  city,  to 
the  church,  to  the  clergy,  or  to  poor  men  of  such  a  place, 
and  to  the  honor  of  God,  or  such  other  cause  like,  as  for 
maintenance  of  learning,  of  the  commonwealth,  of  the 
service  of  God,  or  in  relief  of  poverty,  or  such  other;  then 
I  think  that  he  is  bounden  in  conscience  to  perform  it, 
though  there  be  no  consideration  of  worldly  profit  that  the 
grantor  hath  had  or  intended  to  have  for  it.  And  in  all 
such  promises  it  must  be  understood,  that  he  that  made  the 
promise  intended  to  be  bound  by  his  promise ;  for  else 
commonly,  after  all  doctors,  he  is  not  bound  unless  he  were 
bound  to  it  before  his  promise  :  as  if  a  man  promise  to  give 
his  father  a  gown  that  hath  need  of  it  to  keep  him  lrom 
cold,  and  yet  thinketh  not  to  give  it  him,  nevertheless  he  is 
bound  to  give  it,  for  he  was  bound  thereto  before.  And, 
after  some  doctors,  a  man  may  be  excused  of  such  a 
promise  in  conscience  by  casualty  that  cometh  after  the 
promise,  if  it  be  so,  that  if  he  had  known  ot  the  casualty  at 
the  making  ot  the  promise  he  would  not  have  made  it. 
And  also  such  promises  if  they  shall  bind,  the)*  must  be 
honest,  lawful,  and  possible,  and  else  they  are  not  to  be 
holden  in  conscience,  though  there  be  a  cause,  etc.      And 


Tost.   179. 


Dialogue    II. —  Chap.    24.  177 

if  the  promise  be  good,  and  with  a  cause,  though  no 
worldly  profit  shall  grow  thereby  to  him  that  maketh  the 
promise,  but  only  a  spiritual  profit,  as  in  the  case  before  re- 
hearsed of  a  promise  made  to  an  university,  to  a  city,  to 
the  church,  or  such  other,  and  with  a  cause,  as  to  the  honor 
of  God,  there  it  is  most  commonly  holden  that  an  action 
upon  those  promises  lielh  in  the  law  canon. 

Stud.  Whether  dost  thou  mean  in  such  promises  made  to 
an  university,  to  a  city,  or  to  such  other  as  thou  hast  re- 
hearsed before,  and  with  a  cause,  as  to  the  honor  of  God, 
or  such  other,  that  the  party  should  be  bound  by  his 
promise,  if  he  intended  not  to  be  bound  thereby  yea  or 
nay? 

Doct.  I  think  nay,  no  more  than  upon  promises  made 
unto  common  persons. 

Stud.  And  then  methinketh  clearly,  that  no  action  can 
lie  against  him  upon  such  promises,  for  it  is  secret  in  his 
own  conscience  whether  he  intended  for  to  be  bound  or  nay. 
And  of  the  intent  inward  in  the  heart,  man's  law  cannot 
judge,  and  that  is  one  of  the  causes  why  the  law  of  God  is 
necessary,  (that  is  to  say)  to  judge  inward  things:  and  it" 
an  action  should  lie  in  that  ease  in  the  law  canon,  then 
should  the  law  canon  judge  upon  the  inward  intent  of  the 
heart,  which  cannot  be,  as  me  seemeth.  And  therefore, 
after  divers  that  be  learned  in  the  laws  of  the  realm,  all 
promises  shall  be  taken  in  this  manner  :  that  is  to  say,  it 
he  to  whom  the  promise  is  made  have  a  charge  by  reason 
of  the  promise,  which  he  hath  also  performed,  then  in  that 
case  he  shall  have  an  action  for  that  thing  that  was  promised, 
though  he  that  made  the  promise  have  no  worldly  profit  by 
it  And  if  a  man  say  to  another,  heal  such  a  poor  man  of 
his  disease,  or  make  an  highway,  ami  I  will  give  thee  thus 
much,*  and  if  he  do  it,  I  think  an  action  lielh  at  the  Com- 
mon law.f  and  moreover,  though  the  thing  that   he   should 

*  Nov's  Max.  91  • 

tThis  is  not  a  promise  within  the  statute  29  Car.  j.  c  3,  s.  4.  of  frauds 
and  perjuries;  for  in  this  case  the  entire  credit  is  given  to  the  person  mak- 

I  J 


178  Doctor  and  Student. 

do  be  all  spiritual,  yet  it'  he  perform  it,  I  think  an  action 
lieth  at  the  Common  law.  As  if  a  man  say  to  another,  last 
for  me  all  the  next  Lent,  and  I  will  give  thee  twenty 
pounds,  and  he  performeth  it;  I  think  an  action  lieth  at  the 
Common  law.  And  likewise  if  a  man  say  to  another, 
marry  my  daughter,*  and  I  will  give  thee  twenty  pounds  ;f 
upon  this  promi-e  an  action  lieth,  if  he  marry  his  daughter. 
And  in  this  case  he  cannot  discharge  the  promise  though 
he  thought  not  to,  be  bound  thereby  :  for  it  is  a  good  con- 
tract, and  he  may  have  quid  pro  quo,  that  is  to  say,  the 
preferment  of  his  daughter  for  his  money. %  But  in  those 
promises  made  to  an  university,  or  such  other  as  thou  hast 
remembered  before,  with  such  causes  as  thou  hast  shewed, 
that  is  to  say,  to  the  honor  of  God,  or  to  the  increase  of 
learning,  or  such  other  like  where  the  parly  to  whom  the 
promise  was  made  is  bound  to  no  new  charge  by  reason  of 
the  promise  made  to  him,  but  as  he  was  bound  to  before; 
there  they  think  that  no  action  lieth  against  him,  though  he 
perform  not  his  promise,  for  it  is  no  contract,  and  so  his  own 
conscience  must  be  his  judge  whether  he  intended  to  be 
bound  by  his  promise  or  not.  And  if  he  intended  it  not, 
then  he  offended  for  his  dissimulation  only  ;  but  if  he  in- 
tended to  be  bound,  then  if  he  perform  it  not,  untruth  is  in 
him,  and  he  proveth  himself  to  be  a  liar,  which  is  prohib- 
ited as  well  bv  the  law  of  God  as  by  the  law  of  reason. 
And  furthermore,  many  that  be  learned  in  the  law  of  Eng- 
land hold,  that  a  man  is  as  much  bounden  in  conscience  by 

in^  the  promise,  and  he  alone  is  liable  to  be  sued,  whereas  the  undertaking 
•within  the  statute  signifies  a  collateral  engagement  which  subjects  the 
par  y  to  an  action  if  the  person  lor  whom  he  undertakes  does  not  perform 
the  agreement;  as  if  two  come  to  a  shop,  and  one  of  them  contracts  for 
id  the  seller  does  not  care  for  trusting  him,  whereupon  the  other 
says,  Let  him  have  them,  and  I  will  undertake  he  shall  pay  you;  this  is 
an  agreement  within  the  statute,  and  must  be  reduced  into  writing.  Ld. 
Raym.  224,  1085,  u>^7  •   Fitzgib.  302 ;  Salk.  27. 

*  1  Roll.  Abr.  19;   Moor,  857. 

fThis  promise  is  within  the  statute,  and  must  be  in  writing.  1  Danv. 
Abr.  69.     It  being  a  contract  in  consideration  of  marriage.     1  Str.  34. 

X  Co.  Litt.  47. 


Dialogue    II. — Chap.  24.  179 

a  promise  made  to  a  common  person,  if  he  intended  to  be 
bound  by  his  promise, «as  he  is  in  the  other  cases  that  thou 
hast  remembered  of  a  promise  made  to  the  church,  or  the 
clerg)r,  or  such  other  :  lor  they  say  as  much  untruth  is  in 
the  breaking  of  the  one  as  of  the  other;  and  they  sav  that 
the  untruth  is  more  to  be  pondered  than  the  person  to  whom 
the  promises  be  made. 

Doct.  But  what  hold  they  if  a  promise  be  made  for  a 
thing  past,  as  I  promise  thee  xl.  li.,  for  that  thou  hast 
builded   me  such  a  house,  lieth  an  action  there? 

Stud.  They  suppose  nay,*  but  he  shall  be  bound  in  con- 
science to  perform  it  after  his  intent,  as  is  before  said.f 

Doct.  And  if  a  man  promise  to  give  another  xl.  1.  in  re- 
compence  for  such  a  trespass  that  he  hath  done  him,  lieth 
an  action  there  ? 

Stud.  I  suppose  nay,  and  the  cause  is,  for  that  such 
promises  be  no  perfect  contracts.  For  a  contract  is  prop- 
erly where  a  man  for  his  money  shall  have  by  assent  of  the 
other  party  certain  goods,  or  some  other  profit  at  the  time 
ot  the  contract  or  alter  ;$  but  if  the  thing  be  promised  for  a 
cause  that  is  past,  by  way  of  recompence,  then  it  is  rather 
an  accord  than  a  contract ;  but  then  the  law  is  that  upon 
such  accord  the  thing  that  is  promised  in  recompence  must 
be  paid,  or  delivered  in  hand,  lor  upon  an  accord  there 
lieth  no  action. 

Doct.  But  in  the  case  of  trespass,  whether  hold  they, 
that  he  be  bound  by  his  promise,  though  he  intended  not 
to  be  bound  thereby  ? 

Stud.  They  think  nay,  no  more  than  in  the  other  cases 
that  be  put  before. 

Doct.  In  the  other  cases  he  was  not  hound  to  that  he 
promised,  hut  only  by  his  promise  :  but  in  this  case  <>i   tres- 

*  But  if  there  had  been  a  precedent  request  to  build   the  bouse  on  the 

part  of  him  who  made  the  promise,  the  action  would  lie.  although  the 
consideration  was  executed.  Cro.  Car.  409;  Townsend  :■.  Hunt.  Cro- 
Eliz.  jS:. 

+  Cro.  Eliz.  741;    1  Roll.  A.br.  11.  12. 

I  j  B  C.  44-;    1  New  Abr.  23 ;    1    Comyn's  Digest,  99. 


180  Doctor  and   Student. 

pass  he  was  bound  in  conscience,  before  the  promise,  to 
make  recompence  for  the  trespass  :  and  therefore  it  seemeth 
that  he  is  bound  in  conscience  to  keep  his  promise,  though 
he  intended  not  to  be  bound  thereby. 

Stud.  Though  he  were  bound  before  the  promise  to 
make  recompence  for  his  trespass,  yet  he  was  not  bound  to 
no  sum  in  certain  but  by  his  promise  :  and  because  that  the 
sum  may  be  too  much  or  too  little,  and  not  egal  to  the  tres- 
pass, and  that  the  part)'  to  whom  the  trespass  was  done, 
notwithstanding  the  promise,  is  at  liberty  to  take  his  action 
of  trespass  if  he  will ;  therefore  they  hold  that  he  may  be 
his  own  judge  in  conscience  whether  he  intended  to  be 
bound  by  ins  promise  or  not,  as  he  may  in  other  cases ;  but 
if  it  were  of  a  debt,  then  they  hold  that  he  is  bound  to  per- 
form his  promise,  in  conscience. 

Docl.  What  if  in  the  case  of  trespass  he  affirmeth  his 
promise  with  an  oath? 

Stud.  Then  they  hold  that  he  is  bound  to  perform  it  for 
saving  of  his  oath,  though  he  intended  not  to  be  bound  :  but 
if  he  intended  to  be  bound  by  his  promise,  then  they  say 
that  an  oath  needed  not  but  to  enforce  the  promise  ;  for  they 
say,  he  breaketh  the  law  of  reason,  which  is,  that  we  may 
do  nothing  against  the  truth,  as  well  when  he  breaketh  his 
promise  that  he  thought  in  his  own  heart  to  be  bound  by,  as 
he  doth  when  he  breaketh  his  oath,  though  the  offence  be 
not  so  great,  by  reason  of  the  perjury.  Moreover  to  that 
thou  sayest,  that  upon  such  promises  as  thou  hast  rehearsed 
before,  shall  lie  an  action  after  the  law  canon  ;  verily  as  to 
that  in  this  realm  there  can  no  action  lie  thereon  in  the 
spiritual  court,  if  the  promise  be  of  a  temporal  thing;  for  a 
prohibition  or  a  -pramunire  facias  should  lie  in  that  case.* 

Doct.  That  is  marvel,  sith  there  can  no  action  lie  thereon 
in  the  king's  court,  as  thou  sayest  thyself. 

Stud.  That  maketh  no  matter  :  for  though  there  lie  no 
action  in   the  king's  court  against  executors  upon  a  simple 

*  Br.  Praemunire,  pi.  16. 


Dialogue   II. — Chap.   25.  181 

contract  ;*  yet  if  they  be  sued  in  that  case  for  the  debt  in 
the  spiritual  court,  a  prohibition  lieth.  And  in  like  wise,  it" 
a  man  wage  his  law  untruly  in  an  action  of  debt  upon  a 
contract  in  the  king's  court,  yet  he  shall  not  be  sued  tor  the 
perjury  in  the  spiritual  court,  and  yet  no  remedy  lieth  for  the 
perjury  in  the  king's  courts  ;f  for  the  prohibition  lieth  not 
only  where  a  man  is  sued  in  the  spiritual  court  of  such 
things  as  the  party  may  have  his  remedy  in  the  king's 
court,  but  also  where  the  spiritual  court  holdeth  plea,  in 
such  case  where  they  by  the  king's  pierogative,  and  by  the 
ancient  custom  of  the  realm,  ought  none  to  hold.  J 

Doct.  I  will  take  advisement  upon  that  thou  hast  said  in 
this  matter  till  another  time,  and  I  pray  thee  now  proceed 
to  another  question. 

Chap.  XXV. —  The  twentieth  question  of  the  student. 

Stud.  A  man  hath  two  sons,  one  born  before  espousals, 
and  the  other  alter  espousals,  and  the  father  by  his  will  be- 
queatheth  to  his  son  and  heir  all  his  goods  :  which  of  these 
two  sons  shall  have  the  goods  in  conscience? 

Doct.  As  I  said  in  our  first  dialogue  in  Latin,  the  last  chap- 
ter, the  doubt  in  this  case  dependeth  not  in  the  knowing  what 
conscience  will  in  this  case,  but  rather  the  knowing  which 
of  the  sons  shall  be  judged  heir,  (that  is  to  say)  whether 
he  shall  be  taken  for  heir,  that  is  heir  bv  the  spiritual 
law,  or  he  that  is  heir  by  the  law  of  the  realm,  or  else  that 
it  shall  be  judged  tor  him  that  the  father  took  lor  heir.§ 

Stud.  As  to  that  point,  admit  the  father's  mind  not  to  be 
known,  or  else  that  his  mind  was  that  he  should  be  taken 
tor  heir  that  should  be  judged  for  heir  by  the  law,  that  in 
this  case  it  ought  to  be  judged  by;  ami  then  1  pray  thee, 
shew  me  thy  mind  therein  :  for  though  the  question  he  not 
directly  depending  upon  the  point  to   see  what    conscience 

*'  Ante,  135;  2  Cro.  293;  F.  N.  B.  95;  Br.  Praemunire,  pi.  16. 

t  3  New  Abr.  317. 

J  3  B.  C.  1 1  j  ;  2  Inst  601,  602. 

§  Perk.,  sec.  49;  2  Inst  96,  97. 


i  82  Doctor  and  Student. 

will  in  this  case,  yet  it  is  right  expedient  for  the  well  order- 
ing of  conscience,  that  it  be  known  after  what  law  it  shall 
be  judged ;  for  if  it  ought  to  be  judged  after  the  temporal 
law  who  should  be  heir,  then  it  were  against  conscience,  if 
the  judges  in  the  spiritual  law  should  judge  him  for  heir 
that  is  the  heir  by  the  spiritual  law,  and  I  think  they  should 
be  bound  to  restitution  thereby.  And  therefore,  I  pray  thee, 
shew  me  thine  opinion,  after  what  law  it  shall  be  judged. 

Doct.  Methinketh  that  in  this  case  it  shall  be  jndged  after 
the  law  of  the  church  ;  for  it  appeareth  that  the  bequest  is 
of  goods  :  and  therefore  if  any  suit  shall  be  taken  upon  the 
execution  of  the  will  for  the  bequest,  it  must  be  taken  in  the 
spiritual  court  ;*  and  when  it  is  depending  in  the  spiritual 
court,  methinketh  it  must  be  judged  after  the  spiritual  law  : 
for  of  the  temporal  law  they  have  no  knowledge,  nor  they 
are  not  bound  to  know  it,  as  methinketh  ;  and  more 
stronger  not  to  judge  after  it.  But  if  the  bequest  had  been 
of  a  chattel  real,  as  of  a  lease  for  term  of  years,  or  of  a 
ward,  or  such  other,  then  the  matter  should  have  come  in 
debate  in  the  king's  court  ;f  and  then  I  think  the  judges 
there  should  judge  after  the  law  of  the  realm,  and  that  is, 
that  the  younger  brother  is  heir  :  and  so  methinketh  the  di- 
versity of  the  courts  shall  make  the  diversity  of  judgment. 

Stud.  Of  that  might  follow  a  great  inconvenience,  as  me 
seemeth,  for  it  might  be  such  a  case  that  both  chattels  real 
and  chattels  personal  were  in  the  will,  and  then,  after  thine 
opinion,  the  one  son  shall  have  the  chattels  personal,  and  the 
other  son  the  chattels  real  ;  and  it  cannot  be  conveniently 
taken,  as  methinketh,  but  that  the  lather's  will  was,  that  the 
one  son  should  have  all,  and  not  be  divided.  Therefore 
methinketh  that  he  shall  be  judged  for  heir  that  is  heir  by  the 
Common  law,  and  that  the  judges  spiritual  in  this  case  be 
bound  to  take  notice  what  the  Common  law  is  :$  for  sith  the 
things  that  be  in  variance  be  temporal,  that  is  to  say,  the 


f.  N.  B.  102. 
lb   con. 
1  Ante,  17,  18. 


Dialogue   II. — Chap.  25.  183 

goods  of  the  lather,  it  is  reason  that  the  right  of  them  in 
this  realm  shall  he  determined  by  the  law  of  the  realm. 

Doct.  How  may  that  he?  For  the  judges  spiritual  know 
not  the  law  of  the  realm,  ne  the)7  cannot  know  it  as  to  the 
most  part  of  it;  for  much  part  of  the  law  is  in  such  speech 
that  few  men  have  the  knowledge  of  it,  and  there  is  no 
means,  ne  familiarity  of  study  between  them  that  learn  the 
said  laws;  for  they  be  learned  in  several  places,  and  after 
divers  ways,  and  after  divers  manners  of  teachings,  and  in 
divers  speeches,  and  commonly  the  one  of  them  have  none 
of  the  books  of  the  other:  and  to  bind  the  spiritual  judges 
to  give  judgment  alter  the  law  that  they  know  not,  ne  that 
they  cannot  come  to  the  knowledge  of  it,  seemeth  not  rea- 
sonable. 

Stud.  They  must  do  therein  as  the  king's  judges  must  do 
when  any  matter  cometh  before  them  that  ought  to  be 
judged  after  the  spiritual  law,  whereof  I  put  divers  cases 
in  our  first  dialogue  in  English,  the  sixth  chapter;*  that  is 
to  say,  they  must  either  take  knowledge  of  it  by  their  own 
study,  or  else  they  must  enquire  ot  them  that  be  learned  in 
the  law  of  the  church,  what  the  law  is  ;  and  in  like  wise 
must  they  do.  But  it  is  to  doubt,  that  some  of  them  would 
be  loth  to  ask  any  such  question  in  such  case,  or  to  confess 
that  they  are  bound  to  give  their  judgment  after  the  tem- 
poral law  :  and  surely  they  may  lightly  offend  their  con- 
science. 

Doct.  I  suppose  that  some  be  of  opinion  that  they  are 
not  bound  to  know  the  law  of  the  realm  ;  and  verily,  to  my 
remembrance,  I  have  not  heard  that  judges  of  the  spiritual 
law  are  bound  to  know  the  law  of  the  realm. 

Stud.  And  I  suppose  that  they  are  not  only  bound  to 
know  the  law  ol  the  realm,  or  to  do  that  in  them  is  to  know 
it.  when  the  knowledge  of  it  openeth  the  right  o\  the  mat- 
ter that  dt  pendeth  before  them  :  hut  that  they  be  also  bound 
to  know  where,  and  in  what  case  they  ought  to  judge  after 
it  :   for  in   such   eases  they  must  take   the   king's   law  as  the 

•Ante,  18. 


184  Doctor   and  Student. 

law  spiritual  to  that  point,  and  are  bound  in  conscience  to 
follow  it,  as  it  may  appear  by  divers  cases,  whereof  one  is 
this.*  Two  joint-tenants  be  of  goods,  and  the  one  of  them 
by  his  last  will  bequeathed  all  his  part  to  a  stranger,  and 
maketh  the  other  joint-tenant  his  executor,  and  dieth  :  if  he 
to  whom  the  bequest  is  made  sue  the  other  joint-tenant  upon 
the  legacy  as  executor,  etc.,  upon  this  matter  shewed,  the 
judges  of  the  spiritual  law  are  bound  to  judge  the  will  to 
be  void,  because  it  is  void  by  the  law  of  the  realm,  whereby 
the  joint-tenant  hath  right  to  the  whole  goods  by  the  title  of 
the  survivor,  and  is  judged  to  have  the  goods  as  by  the  first 
gift,  which  is  before  the  title  of  the  will,  and  must  therefore 
have  preferment  as  the  eldest  title  ;f  and  if  the  judges  of  the 
spiritual  court  judge  otherwise,  they  are  bound  to  restitu- 
tion. And  by  like  reason  the  executors  of  a  man  that  is 
outlawed  at  the  time  of  his  death,  may  discharge  themselves 
in  the  spiritual  court  of  the  performing  of  the  legacies,  be- 
cause they  be  chargeable  to  the  king;!  and  yet  there  is  no 
such  law  of  utlagary  in  the  spiritual  law. 

Doct.  By  occasion  of  that  thou  hast  said  before,  I  would 
ask  of  thee  this  question. §  If  a  parson  of  a  church  alien  a 
portion  of  dismes  according  as  the  spiritual  law  hath  or- 
dained, is  not  that  alienation  sufficient,  though  it  have  not 
the  solemnities  of  the  temporal  law? 

Stud.  I  am  in  doubt  therein,  J|  if  the  portion  be  under  the 
fourth  part  of  the  value  of  the  church  ;  but  if  it  be  to  the 
value  of  the  fourth  part  of  the  church  or  above,  it  is  not 
sufficient,  and  therefore  was  the  writ  of  right  of  dismes  or- 
dained.IF  And  if  in  a  writ  of  right  of  dismes  it  be  adjudged 
in  the  king's  court  for  the  patron  of  the  successor  of  him 
that  alieneth,  because  the  alienation  was  not  made  accord- 
ing to  the  Common  law:  then   the  judges  of  the  spiritual 

*  Ante,  iS. 

fPerk.,  sec.  500;   Litt,  sec.  287;   2  Cro.  106. 

X  Ante,  iS. 

§Ib. 

||  F.  N.  B.  70. 

^[  2  Inst-  364;    15r.  Prohibition,  pi.  7. 


Dialogue   II. — Chap.   25. 


law  are  bound  to  give  their  judgment  according  to  the  judg- 
ment given  in  the  king's  court.  And  in  like  wise,  if  a  par- 
son of  a  church  agree  to  take  a  pension  for  the  tvthe  of  a 
mill,  or  if  the  pension  be  to  the  fourth  part  of  the  value  of 
the  church,  or  above,  then  it  must  be  aliened  after  the 
solemnities  of  the  king's  laws,  as  lands  and  tenements  must; 
or  else  the  patron  of  the  successor  of  him  that  alieneth  may 
bring  a  writ  of  right  of  dismes,  and  recover  in  the  king's 
court ;  and  then  the  judges  of  the  spiritual  court  are  bound 
to  give  judgment  in  the  spiritual  courts  accordingly,  as  is 
aforesaid. 

Doct.  I  have  heard  say,  that  a  writ  of  right  of  dismes  is 
given  by  the  statute  of  Westm.  2,  and  that  speaketh  only 
of  dismes,  and  not  of  pensions. 

Stud.  Where  a  parson  of  a  church  is  wrongfully  de- 
forced of  his  dismes,*  and  is  let  by  an  indicavit  to  ask  his 
dismes  in  the  spiritual  court,  then  the  patron  may  have  a 
writ  of  right  of  dismes  by  the  statute  that  thou  speakest  of, 
for  there  lay  none  at  the  common  law  ;  for  the  parson  had 
there  good  right,  though  he  were  let  bv  the  indicavit  to  sue 
for  his  right. f  But  when  the  parson  had  no  remedy  at  the 
spiritual  law,  there  a  writ  of  right  of  dismes  lay  for  the 
patron  bv  the  common  law,  as  well  of  pensions  as  of 
dismes  ;  and  some  say  that  in  such  case  it  lay  of  less  than 
of  the  fourth  part,  bv  the  common  law,  but  that  I  pass  over. 
And  the  reason  why  it  lay  at  the  common  law,  if  the  dismes 
or  pensions  were  above  the  fourth  part,  etc.,  was  this:  By 
the  spiritual  law  the  alienation  of  the  parson  with  the  as- 
sent of  the  bishop,  and  ot  the  chapter,  shall  bar  the  suc- 
cessor  without  assent  of  the  patron,  and  so  the  patron  might 
leese  his  patronage,  and  be  not  assenting  thereto  :  for  his 
incumbent  might  have  no  remedy  but  in  the  spiritual  court, 
and  there  he  was  barred  :  wherefore  the  patron  in  that  case 
shall  have  his  remedy  by  the  common  law,  where  the  as- 
sent of  the  ordinary  and   chapter  without  the  patron   shall 


*F.  N.  B.  70. 

I  j  Inst     $64;    Booth  on  Real  Actions,  uj:   F.  V  B.  70. 


1 86  Doctor  and  Student. 

not  serve,  as  it  is  said  before.  But  where  the  incumbent 
had  good  right  by  the  spiritual  law,  there  lay  no  remedy 
lor  the  patron  by  the  common  law,  though  the  incumbent 
were  let  by  an  indicavit.  And  for  that  cause  was  the  said 
statute  made,  and  it  lieth  as  well  by  the  equity  for  offerings 
and  pensions,  as  for  dismes.  Then,  farther,  I  would  think 
that  where  the  spiritual  court  may  hold  plea  of  a  temporal 
thing,  that  they  must  judge  after  the  temporal  Jaw,  and  that 
ignorance  shall  not  excuse  them  in  that  case  ;*  for  by  taking 
of  their  office  they  have  bound  themselves  to  have  knowl- 
edge of  as  much  as  belongeth  to  their  office,  as  all  judges 
be,  spiritual  and  temporal.  But  if  it  were  in  argument  in 
this  case,  whether  the  eldest  son  might  be  a  priest,  because 
he  is  a  bastard  in  the  temporal  law,  that  should  be  judged 
after  the  spiritual  law,  for  the  matter  is  spiritual. 

Doct.  Yet  notwithstanding  all  the  reasons  that  thou  hast 
made,  I  cannot  see  how  the  judges  of  the  spiritual  law 
shall  be  compelled  to  take  notice  of  the  temporal  law;  see- 
ing that  the  most  part  of  it  is  in  the  French  tongue  ;  for  it 
were  hard  that  every  spiritual  judge  should  be  compelled  to 
learn  the  tongue.  But  if  the  law  of  the  realm  were  set  in 
such  order,  that  they  that  intend  to  study  the  law  canon 
might  first  have  a  sight  of  the  law  of  the  realm,  as  they 
have  now  of  the  law  civil,  and  that  some  books  and  treatises 
were  made  of  cases  of  conscience  concerning  those  two 
laws,  as  there  be  now  concerning  the  law  civil  and  the  law 
canon  ;  I  would  assent  that  it  were  right  expedient,  and 
then  reason  might  serve  the  better,  that  they  should  be 
compelled  to  take  notice  of  the  law  of  the  realm,  as  they 
be  now  bound  in  such  countries  as  the  law  civil  is  used  to 
take  notice  of  that  law. 

Stud.  Methinketh  thine  opinion  is  right  good  and  rea- 
sonable* :  but  till  such  an  order  be  taken,  they  are  bound, 
as  I  suppose,  to  enquire  of  them  that  be  learned  in  the 
Common  law,  what  the  law  is,  and  so  to  give  their  judg- 
ment according,  if  they  will    keep  themselves  from  offence 

*  Het  87. 


Dialogue   II. — Chap.  26. 


of  conscience.*  And  forasmuch  as  thou  hast  well  satisfied 
m}-  mind  in  all  the  questions  before,  I  pray  thee  now  that  I 
may  somewhat  feel  thy  mind  in  divers  articles  that  be  writ- 
ten in  divers  books  for  the  ordering  of  conscience  upon  the 
law  capon  or  civil :  lor  methinketh  that  there  be  divers  con- 
clusions put  in  divers  books,  as  in  the  sums  called  summa 
angelica  and  summa  rosclla,  and  divers  other  for  the  good 
order  of  conscience,  that  be  against  the  law  of  this  realm, 
and  rather  bind  conscience,  than  do  give  any  light  to  it. 

Doct.   I  pray  thee  shew  me  some  of  these  cases. 

Stud.   I  will  with  <iood-will. 

Chap.  XXVI. —  Whether  the  abbot  may  with  conscience 
present  to  an  advozuson  of  a  church  that  belongeth  to  the 
house,  without  asscrd  of  the  coven t  / 

It  appeareth  in  the  chapter,  Et  agnosciiur  de  his  qua 
fiunt  a  flra'/atis.  the  which  chapter  is  recited  in  the  sum 
called  summa  angelica,  in  the  title  abbas,  the  twenty- 
seventh  article,  that  he  may  not,  without  any  custom,  or 
any  special  privilege  to  help  therein. 

Stud.  Truth  it  is,  that  there  is  such  a  decretal  ;  but  they 
that  be  learned  in  the  law  of  England  hold  the  decretal 
bindeth  not  in  this  realm  :  and  this  is  the  cause  why  they  do 
hold  that  opinion.  By  the  law  of  the  realm  the  whole  dis- 
position of  lands  and  goods  of  the  abbey  is  the  abbot's  only 
lor  the  time  that  he  is  abbot,  and  not  in  tiie  covent,  for 
they  be  but  as  dead  persons  in  the  law  ;f  and  therefore  the 
abbot  shall  sue  and  be  sued  only  without  the  covent,  do 
homage,  fealty,  atturn,  make  leases,  and  present  to  advow- 
sons  only  in  his  own  name.  And  they  say,  farther,  that 
this  authority  cannot  be  taken  from  him  but  by  the  law  of 
the  realm  ;  and  so  they  say,  that  the  makers  oi  the  decretal 
exceed  their  power ;  wherefore  they  say  it  is  not  to  be 
holden  in  conscience,  no  more  than  if  a  decree  were  made 
that  a  lease  for  a  term  of  years,  or  at  will,  made  bv  the 


*  Ante.  iS,  19. 

t  Co-   Litt.  94;   ante.  31 


Doctor  and  Student. 


abbot  without  the  covent,  should  be  immediately  void  :  and 
so  they  think  that  the  abbot  may  in  this  case  present  in  his 
own  name  without  offence  of  conscience,  because  the  said 
decretal  holdeth  not  in  this  realm. 

Doct.  But  many  be  of  opinion,  that  no  man  hath  au- 
thority to  present  in  right  and  conscience  to  any  benefice 
with  cure  but  the  pope,  or  that  he  hath  his  authority  therein 
derived  from  the  pope  :*  for  they  say,  that  forasmuch  as 
the  pope  is  the  vicar  general  under  God,  and  hath  the 
charge  of  the  souls  of  all  people  that  be  in  the  flock  of 
Christ's  church,  it  is  reason  that,  sith  he  cannot  m.nister  to 
all,  ne  do  that  is  necessarv  to  all  people  for  their  soul's 
health  in  his  own  person,  that  he  shall  assign  deputies  for 
his  discharge  in  that  behalf.  And  because  patrons  claim 
to  present  to  churches  in  this  realm  by  their  own  right, 
without  title  derived  from  the  pope,  they  say,  that  they 
usurp  upon  the  pope's  authority.  And  therefore  they  con- 
clude, that  though  the  abbot  have  title  by  the  law  of  the 
realm  to  present  in  this  case  in  his  own  name,  that  yet,  be- 
cause that  title  is  against  the  pope's  prerogative,  that  that 
title,  ne  yet  the  law  of  the  realm  that  maintaineth  that  title, 
holdeth  not  in  conscience.  And  they  say  also,  that  it  be- 
longed"! to  the  law  canon  to  determine  the  right  of  present- 
ment to  benefices,  for  it  is  a  thing  spiritual,  and  belongeth 
to  the  spiritual  jurisdiction,  as  the  deprivation  from  a 
benefice  doth  ;f  and  so  they  say  the  said  decretal  bindeth  in 
conscience,  though   in  the   law  of  the  realm   it  bindeth  not. 

Stud.  As  to  the;  iirst  consideration,  I  would  right  well 
agree,  that  if  the  patrons  of  churches  in  this  realm  claimed 
to  put  incumbents  into  such  churches  as  should  fall  void  of 
their  patronage,  without  presenting  them  to  the  bishop,  or 
if  they  claimed  that  the  bishop  should  admit  such  incum- 
bent as  they  should  present,  without  any  examination  to  be 

Bui  .-•/,/,•  the  statutes  25  Ed.  3,  st.  6;  3S  Ed.  3,  st.  2;  12  R.  2,  c  15;  13 
R.  2,  st.  2  ;  7  R.  2,  c.  12;  16  R.  2,  o.  5,  and  21  Ed.  3,  c  1,  which  entirely 
take  :iu;i\  th<  power  of  the  pope  to  present  to  any  benefice  within  this 
realm,  and  see  post.,  c  37. 

f  Post,  c.  36;   Br.  Trials,  pi.  47. 


Dialogue   II. — Chap.  26.  189 


made  of  his  ability  in  that  behalf,  that  that  claim  were 
against  reason  and  conscience,  for  the  cause  that  thou  hast 
rehearsed  :  but  forasmuch  as  the  patrons  in  this  realm  claim 
no  more  but  to  present  their  incumbents  to  the  bishop,  and 
then  the  bishop  to  examine  the  ability  of  the  incumbent, 
and  if  he  find  him  by  examination  not  able  to  have  cure  of 
souls,  he  then  to  refuse  him,  and  the  patron  to  present 
another  that  shall  be  able,  and  if  he  be  able,  then  the 
bishop  to  admit  him,  institute  him  and  induct  him;*  I  think 
that  this  claim,  and  their  presentments  thereupon,  stand 
with  good  reason  and  conscience.  J  As  to  the  second  con- 
sideration, it  is  holden  in  the  laws  ot  the  realm,  that  the 
right  of  presentment  to  a  church  is  a  temporal  inheritance, 
and  shall  descend  by  course  of  inheritance  from  heir  to  heir, 
as  lands  and  tenements  shall,  and  shall  be  taken  as  assets, 
as  lands  and  tenements  be  :  and  for  the  trial  of  the  right  of 
patronages  be  ordained  in  the  law  divers  actions  for  them 
that  be  wronged  in  that  behalf,  as  writs  of  right  of  advow- 
son,  assises  of  Darrein -presentment,  j^jtarc  imped//,  and 
divers  others,  I  which  alway  without  time  of  mind  have  been 
pleaded  in  the  king's  courts  as  things  pertaining  to  his 
crown  and  royal  dignity  :  and  therefore  they  say  that  in 
this  case  his  laws  ought  to  be  obeyed  in  law  and  con- 
science. 

Doc/.  It  it  come  in  variance  whether  he  that  is  so  pre- 
sented be  able  or  not  able,  by  whom  shall  the  ability  be 
tried? 

Stud.  It"  the  ordinary  be  not  party  to  the  action,  it  shall 
be  tried  by  the  ordinary  ;  but  if  he  be  party,  it  shall  be  tried 
by  the  metropolitan. 

Doc/.  Then  the  law  is  more  reasonable  in  that  point  than 
I  thought  it  had  been  :  but  in  the  other  point  I  will  take 
advisement  in  it  till  another  time,  and  I  pray  thee  shew  me 


Watson'6  Clergyman's  Law.  212;   1  Burn's  Eel.  Law.  \i~. 
t  Co.  Litt.  374;  post.,  c.  36. 

J  For  the  nature  and   use  of  these  dilTerent  actions  see  Yin.  Ahr..  title 
Presentation,  411,  473.  4S1,  etc. 


190  Doctor  and   Student. 

thy  mind  in  this  point.  If  an  abbot  name  his  covent  with 
him  in  his  presentation,  doth  that  make  the  presentation 
void  in  the  law  ?  Or  is  the  presentation  good  notwith- 
standing? 

Stud.  I  think  it  is  not  void  therefore,  but  the  naming  of 
them  is  void,  and  a  thincr  more  than  needeth.  For  ii  the 
abbot  be  disturbed,  he  must  bring  his  action  in  his  own 
name,  without  the  covent. 

Doct.  Then  I  perceive  well  that  it  is  not  prohibited  by 
the  law  of  England,  but  that  the  abbot  may  name  the 
covent  in  his  presentation  with  him,  and  also  take  their 
assent  whom  he  shall  present,  if  he  will  :  and  then  I  hold  it 
the  surest  way  that  he  so  do,  for  in  so  doing  he  shall  not 
offend  neither  in  law  nor  conscience. 

Stud.  To  take  the  assent  of  the  covent  whom  he  shall 
present,  and  to  name  them  also  in  the  presentation,  know- 
ing that  he  may  do  otherwise  both  in  law  and  conscience, 
it  he  will,  is  no  offence  :  but  if  he  take  their  assent,  or  name 
them  with  him  in  the  presentation,  thinking  that  he  is  so 
bound  to  do  in  law  and  conscience,  setting  a  conscience 
where  none  is,  and  regardeth  not  the  law  of  the  realm,  that 
will  discharge  his  conscience  in  this  behalf,  if  he  will,  so 
that  he  present  an  <ible  man,  as  he  may  do  without  their 
assent  ;  there  is  an  error  and  offence  of  conscience  in  the 
abbot.  And  in  like  wise,  if  the  abbot  present  in  his  own 
name,  and  therefore  the  covent  saith  that  he  offendeth  in 
conscience,  in  that  he  observeth  not  the  law  of  the  church, 
for  that  he  taketh  not  their  assent  ;*  then  they  offend  in 
judging  him  to  offend  that  offendeth  not.  And  therefore 
the  sure  way  is  in  this  case  to  judge  both  the  said  laws  of 
such  effect  as  they  be,  and  not  to  set  an  offence  of  con- 
science by  breaking  of  the  said  decree,  which  standeth  not 
in  effect  in  this  behalf  within  this  realm. 

•  Ante,  187. 


Dialogue    II. — Chap.    27.  191 

Chap.  XXVII. — If  a  man  find  beasts  in  his  ground  doing 
A  art,  whether  may  he  by  his  own  authority  take  them, 
and  keep  I  hem  till  he  be  satisfied  of  the  hurt. 

This  question  is  made  in  the  sum  called  summa  rosella 
in  the  title  of  restitution ,  that  is  to  say,  restitutio  13,  the 
ninth  article  :  and  there  it  is  answered,  that  he  may  not  take 
them  for  to  hold  them  as  a  pledge  till  he  be  satisfied  for  the 
hurt;  but  that  he  may  take  them,  and  keep  them  till  he 
know  who  oweth  them,  that  he  may  thereby  learn  against 
whom  to  have  his  remedy.  Is  not  the  law  of  the  realm  so 
in  like  wise? 

Stud,  No  verily,  for,  by  the  law  of  the  realm,  he  that  in 
that  case  hath  the  hurt  may  take  the  beasts  as  a  distress,* 
and  put  them  in  a  pound  overt,  so  it  be  within  the  said 
shire, f  and  there  let  them  remain  till  the  owner  will  make 
him  amends  for  the  hurt. 

Doct.   What  callest  thou  a  pound  overt? 

Stud.  A  pound  overt  is  not  only  such  a  pound  as  is  com- 
monly made  in  towns  and  lordships,  for  to  put  in  blasts  that 
be  distrained,  but  it  is  also  every  place  where  they  may  be 
in  lawfully,  not  making-  the  owner  an  offender  for  their  being 
there  :$  and  that  it  be  there  also,  that  the  owner  may  law- 
fully give  the  beasts  meat  and  drink  while  they  be  in  pound. 

Doct.  And  if  they  die  in  the  pound  for  lack  of  meat, 
whose  jeopardy  is  it? 

Stud.  If  it  be  such  a  pound  overt  as  I  speak  of.  it  is  at 
the  peril  of  him  that  owneth  the  beasts,  so  that  he  that  had 
the  hurt  shall  he  at  liberty  to  take  his  action  for  the  trespass, 
if  he  will  :   and  if  it  be  not  a  lawful  pound,  then  it  is  at  the 

j  I .  -.     (S;   2  Inst.  106,  107:   ante,  14. 

1  According  to  the  statute  of  Marlbridge,  52  II-  3,  .(.  ami  vide  the  st;t- 
ute  1  and  2  P.  &  M..  e.  [2,  which  says  that  no  distress  of  cattle  shall  be 
driven  out  of  the  hundred  where  it  is  taken  unless  to  a  pound  overt  in  the 
same  county,  within   three  miles  distance. 

+  3  B.  C.  1-;    Co.  Litt.  47. 


192  Doctor  and  Student. 

peril  of  him  that  distrained  ;  and  so  it  is  if  he  drive  them 
out  of  the  shire,  and  they  die  there.* 

Doct.  I  put  the  case  that  he  that  owneth  the  beasts  offer 
sufficient  amends,  and  the  other  will  not  take  it,  but  keep- 
eth  the  beasts  still  in  pound,  may  not  the  owner  take  them 
out? 

Stud.  No,  for  he  may  not  be  his  own  judge  ;  and  if  he 
do,  an  action  lieth  against  him  for  breaking  of  the  pound  ;f 
but  he  must  sue  a  replevin,  to  have  his  beast  delivered  him 
out  of  the  pound,  and  thereupon  it  shall  be  tried  by  twelve 
men,  whether  the  amends  that  was  offered  were  sufficient 
or  not?+  And  if  it  be  found  that  the  offer  was  not  sufficient, 
then  he  that  hath  the  hurt  shall  have  such  amends  as  the 
twelve  men  shall  assess. 

Doct.  If  it  be  found  by  the  twelve  men  that  the  amends 
were  sufficient,  shall  he  that  refuseth  to  take  it  have  no 
punishment  for  his  refusal,  and  for  keeping  of  the  beasts  in 
pound  alter  that  time? 

Stud.  I  think  no,  but  that  he  shall  yield  damages  in  the 
replevin,  because  the  issue  is  tried  against  him.§ 

Doct.  I  put  the  case  that  the  beasts  after  the  refusal  die 
in  pound  for  lack  of  meat,  at  whose  jeopardy  is  it  then? 

Stud.  At  the  jeopardy  of  him  that  owned  the  beasts,  as 
it  was  before  :||  for  he  is  bound  at  his  peril  by  reason  of  the 
wrong  that  was  done  at  the  beginning,  to  see  that  they  have 
meat  as  long  as  they  shall  be  in  pound,  unless  the  king's 
writ  come  to  deliver  them,  and  he  resisteth  it ;  lor  after  that 
time  it  will  be  at  his  jeopardy  if  they  die  for  lack  of  meat, 
and  the  damage  shall  be  recovered  in  an  action  brought 
upon  the  statute  for  disobeying  the  king's  writ. 


*  Finch  Law,  137;  3  B.  C  13. 

t  If  the  owner  of  the  beasts  break  the  pound,  the  distrainer  may  either 
have  a  writ  of  pound  breach,  in  which  he  shall  recover  damages,  F.  N.  15. 
101,  or  he  may  have  an  action  upon  the  case,  and  if  the  distress  is  for  rent 
shall  therein  recover  treble  damages  by  virtue  of  the  statute  of  1  and  2 
W.  &  M.,  sess.  1,  c.  5. 

J  3  B.  C  147;   Viner's  Abr.,  title  Tender,  iSS,  189. 

§  Vin.  Abr  ,  title  Replevin,  22. 

||  Ante,  14;  Finch  Law,  137. 


Dialogue    II. — Chap.    28.  193 

Chap.  XXVIII. —  Whether  a  gift  made  by  one  under  the 
age  of  twenty-five  years  be  good. 

Doct.   It  appeareth  in  sum  ma  angelica  in  the  title  donatio 
■prima,  the  7th  article,  that  a  man  before  the  age  of  twenty- 
live  years  may  not  give,  without  it  be  with  the  authority  ot 
his  tutor  ;   is  it  not  so  likewise  at  the  Common  law? 

Stud.  The  age  of  infants  to  give  or  sell  their  lands  and 
goods  in  the  law  of  England  is  at  twenty-one  years,  or 
above  ;*  so  that  alter  that  age  the  gift  is  good,  and  before 
that  age  it  is  not  good,  by  whose  assent  soever  it  be,  except 
it  be  for  his  meat,  and  his  drink,  or  apparel, f  or  that  he  do 
it  as  executor,  in  performance  of  the  will  of  his  testator, \ 
or  in  some  other  like  cases,  that  need  not  to  be  rehearsed 
here  :  and  that  age  must  be  observed  in  this  realm  in  law 
and  conscience,  and  not  the  said  age  of  twenty-five  years. § 

Doct.  I  put  the  case  it  were  ordained  by  a  decree  of  the 
church,  that  if  any  man  by  his  will  bequeatheth  goods  to 
another,  and  willeth  that  they  shall  be  delivered  to  him  at 
his  lull  age,  and  that  in  that  case  twenty-five  years  shall  be 
taken  for  the  full  age;  shall  not  that  decree  be  observed 
and  stand  good  after  the  law  of  England? 

Stud.  I  suppose  it  shall  not.  For  though,  it  belong  to  the 
church  to  have  the  probate  and  the  execution  of  testaments 
made  of  goods  and  chattels,  except  it  be  in  certain  lordships 
and  seigniories  that  have  them  by  prescription  :||  yet  the 
church  may  not,  as  me  seemeth,  determine  what  shall  be 
the  lawful  age  for  another  person  to  have  the  goods,  for 
thai  belonireth  to  the  kino-  and  his  laws  to  determine.  Ami 
therefore  if  it  were  ordained  by  a  statute  of  the  realm,  that 
he  should  not  in  such   case  have  the  goods  till   he  were  ot 


*  Ante,  61. 

Ti  B.  C.  466:  Co.  Lift.  172. 

J  And  then  he  must  he  of  the  age  of  seventeen  years,  for  before  that  age 
he  cannot  act  a-  executor.      Went  Off  of  Executor,  313. 

§  Which  in  the  civil  law  is  the  full  age  of  infants.     Wood's  Civil  Law.  101 
||  Perk  .  sec.  4S6;   Godolph.  5S;    I  Salk.  41;   Office  of  Exec.  43. 

13 


94  Doctor   and   Student. 


the  age  of  twenty- five  years,  that  statute  were  good,  and  to 
be  observed  as  well  in  the  spiritual  law  as  in  the  law  of  the 
realm  :  and  if  a  statute  were  good  in  that  case,  then  a  de- 
cree made  thereof  is  not  to  be  observed  ;  for  the  ordering 
of  the  age  may  not  be  under  two  several  powers  ;  and  one 
property  of  every  good  law  of  man  is,  that  the  maker  ex- 
ceed not  his  authority  :  and  I  think  that  the  spiritual  judge 
in  that  case  ought  to  judge  the  full  age  after  the  law  of  the 
realm,  seeing  that  the  matter  of  the  age  concerneth  tem- 
poral goods.  And  I  suppose  farther,  that  as  the  king  by 
authority  of  his  parliament  may  ordain  that  all  wills  shall 
be  void,  and  that  the  goods  of  every  man  shall  be  disposed 
in  such  manner  as  by  statute  should  be  assigned,  that  more 
stronger  he  may  appoint  at  what  age  such  wills  as  be  made 
shall  be  performed. 

Doct.  Thinkest  thou  then  that  the  king  may  take  away 
the  power  of  the  ordinary,  that  he  shall  not  call  executors 
to  account? 

Stud.  I  am  somewhat  in  doubt  therein  :  but  it  seemeth 
that  if  it  might  be  enacted  by  statute,  that  all  wills  should 
be  void,  as  is  aforesaid,  that  then  it  might  be  enacted,  that 
no  man  should  have  authority  to  call  none  to  account  upon 
such  wills,  but  such  as  the  statute  shall  therein  appoint,  lor 
lie  that  ma)'  do  the  more  may  do  the  less.  Notwithstand- 
ing I  will  nothing  speak  determinately  in  that  point  at  this 
time  ;  ne  I  mean  not  that  it  were  good  to  make  a  statute 
that  all  wills  should  be  void,  for  I  think  them  right  expe- 
dient: but  mine  intent  is,  to  prove  that  the  Common  law 
may  ordain  the  time  of  the  lull  age,  as  well  in  wills  of 
temporal  things  as  otherwise,  and  also  that  wills  shall  be 
made  ;  and  if  it  may  so  do,  then  much  stronger  it  belongeth 
to  the  king's  law  to  interpret  wills  concerning  temporal 
things,  as  well  when  they  come  in  argument  before  his 
judges  as  when  they  come  in  argument  before  spiritual 
judges,  and  that  they  ought  nut  to  be  judged  by  several 
laws,  (that  is  to  say)  by  the  spiritual  judges  in  one  manner, 
and  by  the  king's  judges  in  another  manner. 


Dialogue   II. — Chai\  29.  195 

Chat.   XXIX.  —  //  a  man  be  convict  of  heresy,  be  fore  the 
ordinary,  whether  his  goods  be  forfeited. 

Doct.  It  appeareth  in  summa  angelica,  in  the  title  donatio 
firi/na,  the  13th  article,  that  he  that  is  a  heretick  may  not 
make  executors  ;*  for  in  the  law  his  goods  be  forfeit :  what 
is  the  law  of  the  realm  therein?       * 

Stud.  If  a  man  be  convict  of  heresy,  and  abjure,  he 
hath  forfeit  no  goods  ;  but  if  he  convicted  of  heresy,  and  be 
delivered  to  laymen's  hands,  then  hath  he  forfeit  all  his 
goods  that  he  hath  at  that  time  that  he  is  delivered  to  them, 
though  he  be  not  put  in  execution  for  the  heresy  :  but  his 
lands  he  shall  not  forfeit  except  he  be  dead  for  the  heresv, 
and  then  he  shall  forfeit  them  to  the  lords  ol  the  fee,  as  in 
case  of  felonv,  except  they  be  holden  of  the  ordinary,  for 
then  the  king  shall  have  the  forfeiture  ;  as  it  appeareth  bv 
the  statute  made  the  second  year  of  II .  5,  c.  7. 

Doct.  Methinketh  that,  as  it  belongeth  only  to  the  church 
to  determine  heresies,  that  so  it  belongeth  to  the  church  to 
determine  what  punishment  he  shall  have  for  his  heresw 
except  death,  which  they  may  not  be  judges  in  :  but  if  the 
church  decree  that  he  shall  therefore  forfeit  his  goods, 
methinketh  that  they  be  forfeit  by  that  decree. 

Stud.  Xay,  verily,  tor  they  be  temporal,  and  belong  to 
the  judgment  of  the  king's  court :  and  I  think  the  ordinary 
might  have  set  no  line  upon  one  impeached  of  heresy,  till 
it  was  ordained  by  the  statute  of  II.  4,  that  he  may  set  a 
fine  in  that  case,  it  lie  set'  cause  :  and  then  the  king  shall 
have  that  line,  as  in  the  said  statute  appeareth. f 


Godolphin's  Orphan's  Legacy,  36. 
t  lie  the  statute  1  Eliz.,  c.  1.  all  former  statutes  relating  to  her 
repealed,  and  it  is  now  agreed  that  the  ordinary  may  proceed  to  pui 
offence  bv  ecclesiastical  c  nsures.      1  B.  C,  |^-     Ami  if  an  heretic  in  main- 
tenance of  his  errors  set  up  conventicles,  ami  raisi  which  maj 
tend  to  the  disturbance  ol  the  public  peace,  Ik-  maybe  fined  ami  impri 
upon  an  indictment  at  common  law.     1  Haw.  I*.  C.  4.     But  the  common 
law  has  no  power  to  punish  merely  tor  heresy,     lb-     Nor  is  the  offender 
amenable  to  the  statute  law,  but  for  one  species  of  heresy,  in  which  the 
civil  magistrate  is  enabled  to  shew  his  authority;  for  by  the  a.  |  of  g  and 


196  Doctor   and   Student. 


Chap.  XXX. —  Where  divers  patrons  of  an  advozuson,  and 
the  church  voidcth,  the  patrons  vary  in  their  -present- 
ments, whether  the  bishop  shall  have  liberty  to  present 
such  of  the  incumbents  that  he  will,  or  not? 

Uoct.  This  question  is  asked  in  summa  rosclla,  in  the 
title  patronus,  the  9th  .article  ;  and  there  it  appeareth  by 
the  belter  opinion,  that  he  may  present  whether  clerk  he 
will  :*  howbeit  the  maker  of  the  said  sum  saith,  by  the  rigour 
of  the  law,  the  bishop  in  such  case  may  present  a  stranger, 
because  the  patrons  agree  not.  And  in  the  same  chapter 
patronus,  the  15th  article,  it  is  said  that  he  must  be  pre- 
ferred that  hath  the  most  merits,  and  hath  the  most  part  of  the 
patrons  :  and  if  the  number  be  equal,  that  then  it  is  to  con- 
sider the  merits  of  the  patron  :  and  if  they  be  of  like  merit, 
then  may  the  bishop  command  them  to  agree,  and  to  pre- 
sent again  :  and  if  they  cannot  yet  agree,  then  the  liberty  to 
present  is  given  to  the  bishop  to  take  which  he  will  :  and  if 
he  may  not  yet  present  without  great  trouble,  then  shall  the 
bishop  order  the  church  in  the  best  manner  he  can  :  and  if 
he  cannot  order  it,  then  shall  he  suspend  the  church,  and  take 
away  the  relicks,  to  the  rebukes  of  the  patrons  :  and  if  they 
will  not  be  so  ordered,  then  must  he  ask  help  of  the  tem- 
porally. And  in  the  15th  article  of  the  said  title  patronus, 
it  is  asked,  Whether  it  be  expedient  in  such  case,  that  the 
more  part  of  the  patrons  agree,  having  respect  to  all  the 
patrons,  or  that  it  suffice  to  have  the  more  part  in  com- 
parison of  the  less  part?  as  thus  :  There  be  four  patrons  to 
present  one   clerk  :    the   first  and   second   present   one,   the 

10  W.  3,  c.  32,  it  is  enacted  that  if  any  person  educated  in  the  Christian 
religion,  or  professing  the  same,  shall,  hv  writing,  fruiting,  teaching,  or 
advised  speaking,  deny  any  one  of  the  persons  in  the  holy  Trinity  to  be  God, 
or  maintain  that  there  are  more  Gods  than  one,  he  shall  upon  the  first 
offence  be  rendered  incapable  to  hold  any  office  or  p  ace  of  trust,  and  for 
the  second  be  rendered  incapable  of  bringing  any  action,  being  guardian, 

1  utor,  legatee,  or  purchaser  of  lands,  and  -.hall  suffer  three  years'  im- 
prisonment without  bail.  If,  however,  within  four  months  after  the  first 
conviction,  the  delinquent  will,  in  open  court,  publicly  renounce  his  error, 
he  is  discharged  for  that  once  from  all  disabilities. 

2  Leon,  68;   Hcb.  317;  post.  197. 


Dialogue    II. — Chap.  30.  197 

third  presenteth  another,  and  the  fourth  another :  he  that  is 
presented  by  two  hath  not  the  more  part  in  comparison  of 
all  the  patrons,  tor  they  be  equal  ;  but  he  hath  the  more 
part  having  respect  to  the  otlfer  presentments.  To  this 
question  it  is  answered,  That  either  the  presentment  is 
made  of  them  that  be  of  the  college,  and  there  is  requisite 
the  more  part,  having"  respect  to  all  the  college  ;  or  else 
even-  man  presenteth  for  himself  as  commonly  do  laymen 
that  have  the  patronage  of  their  patrimony,  and  then  it  suf- 
ficeth  to  have  the  more  part  in  respect  ot  the  other  parties. 
Doth  not  the  law  of  England  agree  to  these  diversities? 

Stud.  No,  verily. 

Doci.  What  order  then  shall  be  taken  in  the  law  of  Eng- 
land, if  the  patrons  vary  in  their  presentments? 

Stud.  After  the  laws  of  England,  this  order  shall  be 
taken  :  if  they  be  joint-tenants  or  tenants  in  common  of  the 
patronage,  and  they  vary  in  presentment,  the  ordinary  is 
not  bound  to  admit  none  of  their  clerks,  neither  the  more 
part  nor  the  less  ;  and  if  the  six  months  pass,  or  they  agiee, 
then  he  may  present  by  the  lapse  :*  but  he  may  not  present 
within  the  six  months,  tor  if  he  do,  they  may  agree,  and 
bring  a  quare  impcdit  against  him,  and  remove  his  clerk, 
and  so  the  ordinary  shall  be  a  disturber.  And  if  the  patrons 
have  the  patronage  by  descent  as  coparceners,  then  is  the 
ordinary  bound  to  admit  the  clerk  of  the  eldest  sister,  for 
the  eldest  shall  have  the  preferment  in  the  law  if  she  will  \\ 
and  then  at  the  next  avoidance  the  next  sister  shall  pre- 
sent \%  and  so  by  turn  one  sister  alter  another,  till  all  the 
sisters  or  their  heirs  have  presented,  and  then  the  eldest 
sister  shall  begin  again.  And  this  is  called  a  Presenting 
by  turn,  and  it  holdeth  alway  between  coparceners  ol  an 
advowson,  except  they  agree  to  present  together,  or  that 
they  agree  by  composition  to  present  in  some  other  manner  ; 

*  1  Burn's  Eel.  Law.  u:  Watson's  Com.  Inc.  jj;- 

f  Ami  this  privilege  shall  descend  to  her  issuse,  nay  her  assignee  shall 

have  it.  ami  so  shall  her  husband,  who  is  tenant  by  the  courtesy.    Co.  Litt. 
166.  tho'  Kell  4<>.  seems  con. 
;-  Inst.  365 


198  Doctor  and   Student. 

and  if  they  do  so,  the  agreement  must  stand.*  But  this 
must  be  always  except,  that  if  at  the  first  avoidance  that 
shall  be  after  the  death  of  the  common  ancestor,  the  king 
have  the  ward  of  the  voungest  daughter,  that  then  the  kino- 
b\r  his  prerogative  shall  have  the  presentment,  and  at  the  next 
avoidance  the  eldest  sister,  and  so  by  turn.  J  And  it  is  to 
understand,  that  if  after  the  death  of  the  common  ancestor 
the  church  voideth,  and  the  eldest  sister  presented  together 
with  another  of  the  sisters,  and  the  other  sisters  every  one 
in  their  own  name  or  together  ;  that  in  that  case  the  ordinary 
is  not  bound  to  receive  none  of  their  clerks,  but  may  suffer 
the  church  to  run  into  the  lapse,  as  it  is  said  before  ;$  for 
he  shall  not  be  bound  to  receive  the  clerk  of  the  eldest 
sister,  but  where  she  presenteth  in  her  own  name.  And  in 
this  case  where  the  patrons  vary  in  presentment^  the 
church  is  not  properly  said  litigious,  so  that  the  ordinary 
should  be  bound  at  his  peril  to  direct  a  writ  to  enquire  dc 
juro  Patronatus ;|j  for  that  writ  lieth  where  two  present  by 
several  titles,  but  these  patrons  present  all  in  one  title,  and 
therefore  the  ordinary  may  suffer  it  to  pass,  if  he  will,  into 
the  lapse. If  And  this  manner  of  presentments  must  be  ob- 
served in  this  realm  in  law  and  conscience. 

*3  Com.  Digest,  196. 

f  Quare  impedit,  31  Ed.  3;  Br.  Prerogative,  pi.  21. 

J  Co.  Litt.  1S3;  Watson's  Com.  Inc.,  pi.  227. 

§  1  Burn's  Eel.  Law,  19,  12. 

||  The  doctrine  which  seems  to  be  laid  down  here,  viz.,  that  when  a 
church  is  properly  litigious,  the  ordinary  is  bound,  ex  officio,  at  his  peril  to 
award  ixjure  patronatus,  accords  with  the  year  book  of  34  II.  6,  11.  But 
the  better  opinion  is,  that  in  such  case  t  he  ordinary  is  not  obliged  to  direct 
a  writ  to  enquire  of  the  right  of  patronage,  unless  at  the  request  of  the 
parties  at  variance.  Godolphin  Rep-  1S0;  Wats.  Com.  Inc.  113.  And 
therefore  if  no  such  request  is  made,  and  the  church  continues  ligitious,  he 
may  let  six  months  pass,  and  then  he  will  have  a  lawful  title  to  collate  by 
lapse.  Wats.  Com.  Ino.  228.  But  if  such  demand  is  made,  and  the  ordi- 
nary neglects  to  decree  a  process  to  enquire  to  whom  the  right  belongs,  he 
becomes  a  disturber.     3  Com.  Digest,  203. 

1  nob.  317. 


Dialogue   II. — Chap.  31.  199 


Chap.  XXXI. — How   long  time  the  -patron  shall  have  to 
present  to  a  benefice. 

Doct.  This  question  is  asked  in  summa  angelica,  in  the 
title  jus  patronalits,  the  16th  article  ;  and  there  it  is  an- 
swered, That  it  the  patron  be  a  layman,  that  he  shall  have 
lour  months,  and  it  he  be  a  clerk  he  shall  have  six  months. 

Stud.  And  by  the  Common  law  he  shall  have  six  months 
whether  he  be  a  layman  or  a  clerk.  And  I  see  no  reason 
why  a  clerk  should  have  more  respite  than  a  layman,  but 
rather  the  contrary.* 

Doct.  From  what  time  shall  the  six  months  be  accompte  :1  ? 

Stud.  That  is  in  divers  manners  after  the  manner  of  the 
avoidance;f  tor  if  the  church  void  by  death,  creation  or 
cession,  the  six  months  shall  be  counted  from  the  death  of 
the  incumbent,  or  from  the  creation  or  cession,  whereof  the 
patron  shall  be  compelled  to  take  notice  at  his  peril  :  and 
if  the  voidance  be  by  resignation  or  deprivation,  then  the 
six  months  shall  begin  when  the  patron  hath  knowledge 
given  him   by  the   bishop  of  the  resignation  or  deprivation. 

Doct.  What  if  he  have  knowledge  of  the  resignation  or 
deprivation,  and  not  by  the  bishop,  but  by  some  other? 
Shall  not  the  six  months  begin  then  from  the  time  of  that 
knowledge  ? 

Stud.  I  suppose  that  it  shall  not  begin  till  he  have  knowl- 
edge given  him  by  the  bishop. % 

Doct.  An  union  is  also  a  cause  of  voidance  :  how  shall 
the  six  months  be  reckoned  there? 

Stud.  There  can  be  no  union  made  hut  the  patrons  must 
have  knowledge,  and  it  must  be  appointed  who  shall  pre- 
sent after  that  union,  that  is  to  say,  one  of  them  or  both, 
either  jointly  or  by  turn  one  after  another,  as  the  agreement 
is  upon  the  union  ;vj   and  sith  the  patron  is  privy  to  the  avoid- 

*  Finch  Law,  90;   Watson's  Incumbent,  i-- 

|2  B.  C.  27S;  4  Rep.  75. 
X  Br.  Notice,  pi.  25. 

§  Stat.  37  II.  S.  c.  21  ;  3  Nets.  Abr.  4S0:    17  Car.  :,  c.  3. 


loo  Doctor  and  Student. 

ance,  and  is  not  ignorant  of  it,  the  six  months  shall  be  ac- 
counted from  the  agreement. 

Doct.  I  see  well,  by  the  reason  that  thou  hast  made  in 
this  chapter,*  that  ignorance  sometime  excuseth  in  the  law 
of  England  ;  for  in  some  of  the  said  avoidances  it  shall  ex- 
cuse the  patrons,  as  it  appeareth  by  the  reasons  above,  and 
in  some  it  will  not :  wherefore  I  pray  thee  shew  me  some- 
what where  ignorance  excuseth  in  the  law  of  England,  and 
where  not,  after  thine  opinion. 

Stud.  I  will  with  good-will  hereafter  do  as  thou  sayest, 
if  thou  put  me  in  remembrance  thereof.  But  I  would  yet 
move  thee  somewhat  farther  in  such  questions  as  1  have 
moved  thee  before,  concerning  the  diversities  between  the 
laws  of  England  and  other  laws  :  for  there  be  many  more 
cases  thereof  that,  as  me  seemeth,  have  right  great  need, 
for  the  good  order  of  conscience  of  many  persons,  to  be 
reformed,  and  to  be  brought  into  one  opinion,  both  among 
spiritual  and  temporal.  As  it  is  in  the  case  where  doctors 
hold  opinion,  that  the  statute  of  layman,  that  restrains  lib- 
erty to  give  lands  to  the  church,  should  be  void  ;  and  they 
say  farther,  that  if  it  were  prohibit  by  a  statute  that  no  gift 
should  be  made  to  foreigners,  that  yet  a  gift  made  to  the 
church  should  be  good  ;  for  they  say  that  the  inferior  may 
not  take  away  the  authority  ot  the  superior  :  and  this  saying 
is  directly  against  the  statutes, f  whereby  it  is  prohibit  that 
lands  should  not  be  given  in  Mortmain.  And  they  say  also 
that  bequests  and  gifts  to  the  church  must  be  determined 
after  the  law  canon,  and  not  alter  the  laws  and  statutes  of 
laymen  :  and  so  they  regard  much  to  whom  the  gilt  is  made, 
whether  to  the  church,  or  to  make  causways,  or  to  common 
persons,  and  bear  more  favour  in  gifts  to  the  church  than 
to  the  other.  And  the  law  of  the  realm  beholdeth  the  thing 
that  is  given  and  intended,  that  il  the  thing  that  is  given  be 
of  lands  or  goods,  that  the  determination  thereof  of  right 
belongeth  in  this  realm  to  the  king's  laws,  whether  it  be  to 


■  Ante,  77,  148;  post.  253. 

:  Statutes  9  H.  3,  c.  36;  7  Ed.  1 ;  13  Ed.  1,  c.  32;  34  Ed.  1 ;   15  R.  2,  c.  5; 
29  H.  8,  c  10 


Dialocue   II. — Chap.  32.  201 

spiritual  men  or  temporal,  to  the  church  or  to  other;  and  so 
is  great  division  in  this  behalf,  when  one  preferreth  his 
opinion,  and  another  his,  and  one  this  jurisdiction,  and  an- 
other that;  and  that,  as  it  is  to  fear,  more  of  singularity 
than  of  charity.  Wherefore  it  seemeth  that  they  that  have 
the  greatest  charge  over  the  people,  specially  to  the  health 
of  their  souls,  are  most  bound  in  conscience  before  other  to 
look  to  this  matter,  and  to  do  that  in  them  is,  in  all  charity 
to  have  it  reformed,  not  beholding  the  temporal  jurisdiction 
or  spiritual  jurisdiction,  but  the  common  wealth  and  quiet- 
ness of  the  people  :  and  that  undoubtedly  would  shortly 
follow,  if  this  division  were  put  away,  which  I  suppose 
verily  will  not  be,  but  that  all  men  within  the  realm,  both 
spiritual  and  temporal,  be  ordered  and  ruled  by  one  law  in 
all  things  temporal.  Notwithstanding,  forasmuch  as  the 
purpose  of  this  writing  is  not  to  treat  of  this  matter,  there- 
fore I  will  no  farther  speak  thereof  at  this  time. 

Doct.  Then  I  pray  thee  proceed  to  another  question,  that 
thou  sayest  thy  mind  is  to  c!o. 

Stud.    I  will  with  good-will. 

Chap.   XXXII. — If  a  man   be  excommenged,  whether  he 
may  in  any  case  be  assorted  without  making  satisfaction* 

In  the  sum  called  sum  ma  resell  a,  in  the  title  absolutio 
quarta,  the  second  article,  it  is  said,  that  he  that  is  excom- 
municate tor  a  wrong,  if  he  be  able  to  make  satisfaction, 
ought  not  to  be  assoiled,  but  he  do  satisfy  :  and  that  they 
offend  that  do  assoil  him,  but  vet  nevertheless  he  is  assoiled  ; 
and  if  he  be  not  able  to  make  amends,  that  he  must  yet  be 
assoiled,  taking  sufficient  gage  to  satisfy  if  he  be  able  here- 
after, or  else  that  he  make  an  oath  to  satisfy,  it'  he  be  able. 
And  these  sayings  in  many  things  hold  not  in  the  laws  of 
England. 

Doct.  I  pray  thee  shew  wherein  the  law  of  the  realm 
varieth  therefrom. 

Stud.  If  a  man  be  excommunicate  in  the  spiritual  court 
for  debt,   trespass,   or   such   other  things   as  belong  to  the 


202  Doctor  and  Student. 

king's  crown,  and  to  his  royal  dignity,  there  he  ought  to  be 
assoiled  without  making  any  satisfaction,  for  the  spiritual 
court  exceedeth  their  power  in  that  they  held  plea  in  those 
cases,  and  the  party,  if  he  will,  may  thereupon  have  a 
Praemunire  facias  ,*  as  well  against  the  party  that  sued  him 
as  against  the  judge,  f  and  therefore  in  this  case  they  ought 
in  conscience  to  make  absolution  without  any  satisfaction, 
for  they  not  only  offended  the  party,  in  calling  him  to 
answer  before  them  of  such  things  as  belong  to  the  law  of 
the  realm,  but  also  the  king;  for  he,  by  reason  of  such 
suits,  may  leese  great  advantages  by  reason  of  the  writs 
originals,  judicials,  fines,  amerciaments,  and  such  other 
things  as  might  grow  to  him,  if  suits  had  been  taken  in  his 
courts  according  to  his  laws.  And  according  to  this  saying 
it  appeareth  in  divers  statutes,  that  if  a  man  lay  violent 
hands  upon  a  clerk,  and  beat  him,  that  for  the  beating 
amends  shall  be  made  in  the  king's  court  \\  and  for  the 
laying  of  violent  hands  upon  the  clerk,  amends  shall  be 
made  in  the  Court-christian.§  And  therefore  if  the  judge 
in  the  Court-christian  would  award  the  part}-  to  yield 
damages  for  the  beating,  he  did  against  the  statute.  ||  But 
admit  that  a  man  be  excommenged  for  a  thing  that  the 
spiritual  court  may  award  the  party  to  make  satisfaction  of, 
as  for  the  not  inclosing  of  the  church-yard,  or  for  not  ap- 
parelling of  the  church  conveniently  ;H  then  I  think  the 
party  must  make  restitution,  or  lay  a  sufficient  caution,  if 

:;:  3  Inst.  122. 

t  And  a  wrongful  excommunication  by  a  spiritual  judge,  may  likewise 
be  punished  by  an  action  upon  the  case,  or  an  indictment  at  the  suit  of 
the  king.     2  Inst.  623. 

\  See  the  Stat.  Articuli  Cler.,  9  Ed.   2,  c.  3. 

£  Mr.  Justice  Blackstone  says,  that  a  person  guilty  of  beating  a  clergy- 
man, i-  subject  to  three  kinds  of  prosecution,  all  ot  which  may  be  pur- 
sued for  one  and  the  same  offence,  viz.,  an  indictment  for  breach  of  the 
king's  peace  by  such  assault  and  battery;  a  civil  action  for  the  special 
damage  BUStained  by  the  party  injured,  and  a  suit  in  the  Ecclesiastical 
Court.     4  15.  C  218. 

]|  2  Burn's  Eel.  Law,  48. 

\  1  Mod.  194;   1  Vent.  367;  Gibs.  1063;  2  Burn's  Eccl.  Law,  227,  228. 


•      Dialogue   II. — Chap.  23-  2°3 

he  be  able,  or  he  be  assoiled  ;  but  if  the  party  oiler  sufficient 
amends,  and  have  his  absolution,  and  the  judge  will  not 
make  him  his  letters  of  absolution,  if  the  excommengement 
be  of  record  in  tin:  kino's  court,  then  the  king  may  write 
unto  the  spiritual  judge,  commanding  him  that  he  make  the 
parly  his  letters  of  absolution,  upon  pain  of  contempt:*  and 
if  the  said  excommunication  be  not  of  record  in  the  king's 
court,  then  the  party  may  in  such  case  have  his  action 
against  the  judge  spiritual,  for  that  he  would  not  make  him 
his  letters  of  absolution. f  But  if  he  be  not  able  to  make 
satisfaction,  and  therefore  the  judge  spiritual  will  not  assoil 
him,  what  the  king's  laws  may  do  in  this  case  I  am  some- 
what in  doubt,  and  will  not  much  speak  of  it  at  this  time  ; 
but,  as  I  suppose,  he  may  as  well  have  his  action  in  that 
case  for  the  not  assoiling  him,  as  where  he  is  assoiled,  and 
that  the  judge  will  not  make  him  his  letters  of  absolution. 
And  I  suppose  the  same  law  to  be,  where  a  man  is  accursed 
tor  a  thing  that  the  judge  hath  no  power  to  accurse  him  in, 
as  for  debt,  trespass,  or  such  other. J 

Doct.  There  he  may  have  other  remedies,  as  a  Pncniu- 
nire  facias,  or  such  other :  and  therefore  I  suppose  the 
other  action  lieth  not  for  him. 

Stud.  The  judge  and  the  party  may  be  dead,  and  then 
no  Pr&munire  lieth  ;  and  though  they  were  alive,  and  were 
condemned  in  Prcemunire^  yet  that  should  not  avoid  the 
excommengement :  and  there  I  think  the  action  lieth, 
specially  if  he  he  thereby  delayed  ot"  actions  that  he  might 
have  in  the  king's  court  if  the  said  excommengement  had 
not  been. 

Chap.   XXXIII. —  Whether  a  prelate  may  refuse  a  legacy. 

It  is  moved  in  the  said  sum  named  rosella,  in  the  title 
alienatio  20,  the  nth  article,  whether  a  prelate  may  refuse 
a    legacy?     Wherein    divers    opinions    be    recited    there, 

i!  See  post.,  c.  ,56. 
t  2  Inst.  623. 
J  Ante.  1S0 


204  Doctor  and  Student.       g 

which,  as  methinketh,  had  need  after  the  laws  of  the  realm 
to  be  more  plainly  declared. 

Doct.   I  pray  thee  shew  me  what  the  law  of  the  realm 
will  therein. 

Stud.  I  think  that  every  prelate  and  sovereign  that  may 
only  sue  and  be  sued  in  his  own  name,  as  abbots,  priors, 
and  such  other,  may  refuse  any  legacy  that  is  made  to  the 
house  :*  for  the  legacy  is  not  perfect  till  he  to  whom  it  is 
made  assent  to  take  it :  for  else,  if  he  might  not  refuse  it,  he 
might  be  compelled  to  have  lands,  whereby  he  might  in 
some  case  have  great  loss.  But  that  if  he  intend  to  refuse, 
lie  must,  as  soon  as  his  title  by  the  legacy  falleth,  relinquish 
to  take  the  profits  of  the  thing  bequeathed  ;  for  if  one  take 
the  profits  thereof,  he  shall  not  after  refuse  the  legacy ;  but 
yet  his  successor  may,  if  he  will,  refuse  the  taking  of  the 
profits,  to  save  the  house  from  yielding  damages,  or  from 
arrearages  of  rents,  if  any  such  be.  And  like  law  is  of  a 
remainder  as  is  in  legacy.  For  though  in  the  case  of  a  re- 
mainder, and  also  of  a  devise,  as  most  men  say,  the  free- 
hold is  cast  upon  him  by  the  law,  when  the  remainder  or 
devise  falleth  :  yet  it  is  in  his  liberty  to  refuse  the  taking  of 
the  profits,  and  to  refuse  the  remainder,  if  he  will,  as  he 
might  do  of  a  gift  of  lands  or  goods.  |  For  if  a  gift  be  made 
to  a  man  that  refuseth  to  take  it,  the  gift  is  void  :$  and  if  it 
be  made  to  a  man  that  is  absent,  the  gift  taketh  no  effect  in 
him  till  he  assent, §  no  more  than  if  a  man  disseise  one  to 
another  man's  use,  he  to  whose  use  the  desseisin  is  made, 
hath  nothing  in  the  land,  ne  is  no  disseisor,  till  he  agree. || 
And  to  such  disseisins  and  gifts  an  abbot  or  prior  may  dis- 
agree, as  well  as  another  man.  But  after  some  men,  a 
bishop,  of  a  devise  or  remainder  that  is  made  to  the  bishop 
and  to  the  dean  and  chapter,  nor  a  dean  and  chapter  of  a 


Ante,  31. 
t  Br.  Done,  pi.  7. 

:  ii'-,  pi-  30- 

§  But  the  belter  law  is,  that  the  property  vests  in  him  till  he  disagrees. 
Wood's  Conv.  118;    1  Salk.  301 

||  Co.  Lilt.  180;   Bro.,  tit.  Disseisin,  12  ■ 


Dialogue   II. — Chap. 


33-  205 


devise  or  remainder  made  to  them,  neyet  the  master  of  a  col- 
lege, of  such  a  devise  or  remainder  made  to  him  and  to  his 
brethren,  may  not  disagree  without  the  chapter  or  brethren  : 
for  the  bishop  of  such  land  as  he  hath  with  the  dean  and 
chapter,  ne  the  dean  nor  master  of  such  land  as  they  have 
with  the  chapter  and  brethren,  may  not  answer  without  the 
chapter  and  brethren  :*  and  therefore  some  sav,  that  if  the 
dean  or  master  will  refuse  or  disclaim  in  the  lands  that  they 
have  by  the  devise  or  remainder,  that  disclaimer  without  the 
chapter  or  brethren  is  void.  And  therefore  it  is  holden  in 
the  law,  that  if  a  bishop  be  vouched  to  warrant,  and  the 
tenant  bindeth  him  to  the  warranty  by  reason  of  a  lease 
made  to  him  by  the  bishop,  and  by  the  dean  and  the  chap- 
ter, yielding  a  rent,  that  in  that  case  the  bishop  may  not 
disclaim  in  the  reversion  without  the  assent  of  the  dean  and 
chapter  :t  but  yet  if  a  reversion  were  granted  to  a  dean  and 
a  chapter,  and  the  dean  refuse,  the  grant  is  void.  And  so 
it  appeareth  that  the  dean  may  refuse  to  take  a  gift  or  grant 
of  lands  or  goods,  or  of  a  reversion  made  to  him  and  to 
the  chapter  ;$  and  yet  he  may  not  disagree  to  a  remainder 
or  devise.  And  the  diversity  is,  because  the  remainder  and 
devise  be  cast  upon  him  without  any  assent,  whereupon 
neither  the  dean  nor  the  chapter  by  themselves  may  in  no 
wise  disagree  without  the  assent  of  the  other  :  but  a  gift  or 
grant  is  not  good  to  them  without  they  both  assent.  And 
in  such  gilts,  as  I  suppose,  an  infant  may  disagree  as  well 
as  one  of  full  age  :  but  if  a  woman  covert  disagree  to  a  grift, 
and  the  husband  agree,  that  gift  is  good.§ 

Doct.  What  if  the  lands  in  that  case  of  a  man  and  his 
wife  be  charged  with  damages,  or  be  charged  with  more 
rent  than  the  land  is  worth,  and  the  husband  d;e  ;  shall  the 
wile-  be  charged  to  the  damages  or  to  the  rent? 

Stud,  I  think  nay,  it  the  wife  refuse  the  occupation  of 
the  trround  after  her  husband's  death.     And  I  think  the  same 


*Co.  Litt.  103. 

f  Br.  Disclaimer,  pi.  7;  40  Ed.  3.  -7. 

J  Watson's  Clergyman's  Law,  377:  Co.  Litt.  263,  264. 

§  Br.  Done,  pi.  4. 


206  Doctor  and  Student. 

law  to  be,  if  a  lease  be  made  to  the  husband  and  the  wife, 
yielding  a  greater  rent  than  the  land  is  worth,  that  the  wife 
after  the  husband's  death  may  refuse  the  lease,  to  save  her 
from  the  payment  of  the  rent :  and  so  may  the  successor  of 
an  abbot,* 

Doct.  And  if  the  husband  in  that  case  out-live  the  wife, 
and  then  make  his  executors  and  die,  whether  may  his  ex- 
ecutors in  like  wise  refuse  the  lease? 

Stud.  If  they  have  goods  sufficient  of  their  testator  to 
pay  the  rent,  I  think  they  may  not  refuse  it :  but  if  they 
have  not  goods  sufficient  of  their  testator  to  pay  the  rent  to 
the  end  of  the  term,  I  think,  if  the}'  relinquish  the  occupa- 
tion, they  may  by  special  pleading  discharge  themselves 
of  the  rent  and  the  lease  ;  and  if  they  do  not,  they  may 
lightly  charge  themselves  of  their  own  goods. f  And  if  a 
lease  be  made  for  term  of  life,  the  remainder  to  an  abbot  for 
term  of  life  of  John  at  Stile,  reserving  a  greater  rent  than 
the  land  is  worth,  and  after  the  tenant  for  term  of  life  dieth  ; 
the  abbot  may  refuse  the  remainder,  for  the  cause  before 
rehearsed  \%  and  in  case  that  the  abbot  assent  to  the  re- 
mainder, whereby  he  is  charged  to  the  rent  during  the  time 
that  he  is  abbot,  and  after  he  dieth  or  is  deposed,  living  the 
said  John  at  Stile,  in  that  case  his  successor  may  discharge 
himself,  by  refusing  the  occupation  of  the  land  as  is  afore- 
said. But  I  think  that  if  such  a  remainder  were  made  to  a 
dean,  and  to  the  chapter,  and  the  dean  agree  without  the 
assent  of  t'ie  chapter,  that  in  that  case  the  dean  and  the 
chapter  may  afterwards  disagree  to  the  remainder,  and  that 
the:  act  of  the  dean  without  the  assent  of  the  chapter  shall 
not  charge  the  chapter  in  that  behalf.  And  thus  it  appear- 
eth,  though  the  meaning  of  the  said  chapter  and  article  in 
the  said  sum  be,  that  a  prelate  may  not  disagree  unto  a 
legacy  for  hurting  ot   the  house,  yet   he  may  alter  the  laws 


*4  Danv.  Abr.  714;   Br.  Abr.,  pi.  30;  43  Ass.  23. 
f  1  Vent.  271  ;    Salk.  297;    I  Mod.   1S5,   iS.  ,. 

J  Br.  Abbe.  30;  37  Ass.    17;   Br.   Waiver  de   Choses,  pi.   20;  post.  209; 
ante,  32. 


Dialogue   II. — Chap.  34.  207 

of  the  realm  disagree  thereto  where  it  should  hurt  his  house. 
And  it  in  a  Pracrpe  quod  reddat  there  be  but  one  tenant, 
be  he  spiritual  or  temporal,  and  he  refuse  by  way  of  dis- 
claimer, in  such  case  where  he  may  disclaim  by  the  law  ;* 
there  the  land  shall  vest  in  the  demandant:  and  if  there  be 
two  tenants,  then  it  shall  vest  in  his  fellow,  if  he  will  take 
the  whole  tenancy  upon  him,  or  else  it  shall  vest  in  the  de- 
mandant. But  if  an  abbot  or  layman  refuse  the  taking  of 
the  profits,  and  shew  a  special  cause  why  it  should  hurt 
him,  if  he  do  assent,  and  be  thereby  discharged,  as  is  said 
before  ;  in  whom  the  land  shall  then  vest  it  is  more  doubt, 
whereof  I  will  no  farther  speak  at  this  time.  And  thus  it 
appeareth  bv  divers  of  the  cases  that  be  put  in  this  chapter, 
that  he  that  is  ignorant  in  the  law  of  the  realm  shall  lack 
the  true  judgment  of  conscience  in  many  cases.  For  in 
man}'  of  these  cases  what  may  be  done  therein  by  the  law, 
must  also  be  observed  in  conscience,  etc. 

Chap.  XXXIV. —  Whether  a  gift  made  under  a  condition 

be  void,  if  the  sovereign  only  break  the  condition. 

In  siinnna  rosella,  in  the  title  alienatio,  the  12th  article, 
is  asked  this  question,  Whether  a  gift  made  under  a  certain 
form  mav  be  voided  or  revoked,  because  the  prelate  or 
sovereign  onlv  did  break  the  lorm?  And  it  is  there  an- 
swered, That  it  may  not,  for  that  the  deed  of  the  prelate 
only  sought  not  to  hurt  the  church  :  and  if  those  words 
{under  a  manner)  be  understood  oi  a  gift  upon  condition, 
as  they  seem  to  be,  then  the  said  solution  holdeth  not  in 
this  realm  neither  in  the  law  nor  conscience. 

Doct.  What  is  then  the  law  of  England  if  a  man  infeoff 
an  abbot  by  dce\\  indented,  Upon  condition  that  if  the  abbot 
pay  not  to  the  feoffor  a  certain  sum  of  money  at  such  a  day. 
that  then  it  shall  be  lawful  to  the  feoffor  to  re-enter,  and  at 
that  day  the  abbot  faileth  of  his  payment;  may  the  feoffor 
lawfully  re-enter,  and  put  out  the  abbot? 

*Co  Litt.  362. 


2o8  Doctor  and   Student. 


Stud.  Yes,  verily,  for  he  has  no  right  to  the  land  but  by 
the  gift  of  the  feoffor,  and  his  gift  was  conditional  ;*  and 
therefore  if  the  condition  be  broken,  it  is  lawful  by  the  law 
of  England  for  the  feoffor  to  re-enter  and  to  take  his  land 
again,  and  to  hold  as  in  his  first  estate  :  by  which  re-entry 
after  the  laws  of  the  realm,  he  disproveth  the  first  livery  of 
seisin,  and  all  the  mesne  acts  done  between  the  first  feoff- 
ment and  the  re-entry. f  And  it  forceth  little  in  the  law,  in 
whom  the  default  be  that  the  condition  was  not  performed, 
whether  in  the  abbot,  or  in  his  covent,  or  in  both,  or  in  any 
other  person  whatsoever  he  be,  except  it  be  in  the  feoffor 
himself.  And  it  is  great  diversity  between  a  clear  gift 
made  to  an  abbot  without  condition,  and  where  it  is  made 
with  condition  :  for  when  it  is  made  without  condition,  the 
act  of  the  abbot  only  shall  not  by  the  Common  law  disherit 
the  house,  but  it  be  in  very  few  cases.  But  yet  upon  divers 
statutes  the  sufferance  ot  the  abbot  only  may  disherit  the 
house,  as  by  his  cesser,  or  by  levying  a  cross  upon  a  house 
against  the  statute  thereof  made,  in  which  case  the  house 
thereby  shall  leese  the  land  :  and  some  say  that  by  the 
Common  law  upon  his  disclaimer  in  avowry  a  writ  ot  right 
of  disclaimer  lieth.  But  if  the  gift  be  upon  condition,  it 
standeth  neither  with  law  nor  conscience  that  the  abbot 
should  have  any  more  perfect  or  sure  estate  than  was  given 
unto  him  :  and  therefore  as  the  said  estate  was  made  to  the 
house  upon  condition,  so  that  estate  may  be  avoided  for  not 
performing  of  the  condition.  And  I  think  verily,  that  this 
I  have  said  is  to  be  holden  in  this  realm  both  in  the  law  and 
conscience,  and  that  the  decrees  of  the  church  to  the  con- 
trary bind  not  in  this  case.  But  if  the  lands  be  given  to  an 
abbot,  and  to  his  covent,  to  the  intent  to  find  a  lamp,  or  to 
give  certain  alms  to  poor  men  ;  though  the  intent  be  not  in 
these  cases  fulfilled,  yet  the  feoffor  nor  his  heir  may  not 
re-enter  ;  for  he  reserved  no  re-entry  by  express  words  :  ne 
in  the  words,  when  he  said,  to  the  intent  to  find  a  lamp,  or 


*  Shep.  Touch.  114. 
t4Rep.  120;   Plow.  186. 


Dialogue   II. — Chap.  2S-  2°9 

to  give  alius,  etc.,  is  implied  no  re-entry:*  lie  the  feoffor 
nor  his  heirs  shall  have  no  remedy  in  such  cases,  unless  it 
be  within  the  case  of  the  statute  of  Westminster  the  second, f 
that  giveth  the  Cessavit  de  Cantaria.% 

Chap.   XXXV. —  Whether  a  covenant  made  upon  a  gift  to 
the  ehurch,  that  it  shall  not  be  aliened,  be  good. 

In  the  said  sum,  called  summa  rosclla,  the  said  title 
alienatio,  the  13th  article,  is  asked  this  question,  Whether 
a  covenant  made  upon  a  gift  to  the  church,  that  it  shall  not 
be  aliened,  be  good?  And  the  same  question  is  moved 
again  in  the  said  summa  called  rosella,  in  the  title  conditio, 
the  first  article,  and  in  summa  angelica,  in  the  title  donatio 
prima,  the  fifty-first  and  fifty-second  articles.  And  the  in- 
tent of  the  question  the  reis,  Whether  notwithstanding  that 
the  condition  be  good  to  some  alienations,  whether  that  yet 
it  be  good  to  restrain  alienations  for  the  redemption  of  them 
that  be  in  captivity  under  the  infidels,  or  for  the  greater  ad- 
vantage of  the  house?  And  though  the  better  opinion  be 
there,  that  the  condition  may  not  be  broken  for  redemption 
ot  them  that  be  in  captivity;  yet  it  is  in  manner  a  whole 
opinion  that  it  may  be  sold  for  the  greater  advantage  to  the 
house  ;  for  it  is  said  there,  that  it  may  not  be  taken  but  that 
the  intent  of  the  giver  was  so;  and  therefore  they  call  the 
condition  that  prohibiteth  it  to  be  sold  conditio  tnrpis,  that  is 
to  say,  a  vile  condition  ;  wherefore  they  regard  it  not.  But 
verily,  as  I  take  it.  if  a  condition  may  restrain  any  manner 
of  alienations,  then  it  shall  as  well  restrain  alienations  for 
the  two  causes  before  rehearsed,  as  for  any  other  causes  ; 
and  though  methinketh  that  the  condition  is  good,  and  after 

♦Wood's  Inst.  140;  Co.  Litt.  J04;  1  Roll.  Abr.  407;  Reg.  238;  2  Inst. 
460;  F.  N    B.  4S1,  4S3;  3  Black.  Com   232. 

t  ;  ;  Ed    1.  c.  41. 

JN.  B.  Since  the  suppression  of  religious  houses,  the  laws  relating  to 
ahbots  and  priors,  which  make  so  conspicuous  a  figure  in  our  old  books, 
are  become  quite  abolished.  See  ante.  3:-  Consequently  the  matter  of 
which  this  chapter  is  composed  cannot  now  come  into  use. 

14 


210  Doctor  and  Student. 

the  law  of  the  realm,  that  upon  gifts  to  the  church  aliena- 
tion is  restrained  ;  yet  I  shall  touch  one  reason  that  is  made 
to  the  contrary,  that  is  this  :  There  is  a  clear  ground  in  the 
law,*  that  if  a  ieoffment  be  made  to  a  common  person  in  fee, 
upon  condition  that  the  feoffee  shall  not  alien  to  no  man  ;f  that 
condition  is  void,  because  it  is  contrary  to  the  estate  of  a  fee- 
simple,  lo  bind  him  that  hath  the  estate  that  he  should  not  alien 
if  he  list.  X  And  some  say  that  an  abbot  that  hath  lands  to  him 
and  to  his  successors,  hath  as  high  and  as  perfect  a  fee-simple 
as  hath  a  layman  that  hath  land  to  him  and  to  his  heirs  ;  and 
therefore  they  say,  that  it  is  as  well  against  the  law  of  the 
realm  to  prohibit  that  the  abbot  shall  not  alien,  as  it  is  to 
prohibit  a  layman  thereof.  And  though  it  be  therein  true  as 
they  say,  as  to  the  highness  of  the  estate,  yet  methinketh 
there  is  a  great  diversity  between  the  cases  concerning 
their  alienations.  For  when  lands  be  given  in  fee-simple 
to  a  common  person,  the  intent  of  the  law  is  that  the  feoffee 
shall  have  power  to  alien,  and  if  he  do  alien,  it  is  not 
against  the  intent  of  the  law,  ne  yet  against  the  intent  of 
the  feoffor  ;  but  when  lands  be  given  to  an  abbot  and  to  his 
successors,  the  intent  of  the  law  is,  and  also  of  the  giver, 
(as  it  is  to  presume)  that  it  should  remain  in  the  house  for 
ever;  and  therefore  it  is  called  Mortmain,  that  is  to  say,  a 
dead  hand,§  as  who  saith,  that  it  shall  abide  there  ahvay 
as  a  thing  dead  to  the  house.  And  therefore,  as  I  suppose, 
the  law  will  sutler  that  condition  to  be  good,  that  is  made 
to  restrain  that  such  Moi'tmain  should  not  be  aliened  :||  and 
that  yet  it  may  prohibit  the  same  condition  to  be  made  upon 
a  feoffment  made  in  fee-simple  to  a  man  and  to  his  heirs  :H 
for  that  is  the  most  high,  the  most  free,  and  the  most  pure 

»2  C  B.  157. 

t  Ante,  S6,  63. 

J  Co.  Lilt.  S,  94. 

§  If  the  reader  wishes  to  be  further  acquainted  with  the  doctrine  of  Mort- 
main, and  the  several  statutes  made  for  restraining  it,  he  may  consult  Doc- 
tor Burn's  Eccl.  Law,  title  Mortmain,  and  the  2d  vol.  B.  C.  268,  where  the 
subject  is  discussed  in  a  masterly  manner. 

||  Co.  Litt.  223;  Wood's  Conv.  277. 

^  Litt.,  sec.  11. 


Dialogue   II. — Chap.  35.  211 

estate  that  is  m  the  law.  But  the  law  suffereth  such  a  con- 
dition to  be  made  upon  a  gift  in  tail,*  because  the  statute 
prohibiteth  that  no  alienation  should  be  made  thereof.f 
And  then,  as  the  law  suffereth  such  a  condition  upon  a 
gift  in  Mortmain,  that  is  to  say,  that  he  shall  not  be 
aliened,  to  be  good  ;  so  it  judgeth  the  condition  also  accord- 
ing to  the  words  :  that  is  to  saw  if  the  condition  be  general, 
that  they  shall  not  alien  to  no  man,  as  this  case  is,  that  it 
shall  be  taken  generally  according  to  the  words,  and  it  shall 
not  be  taken  that  the  intent  of  the  giver  was  otherwise  than 
he  expressed  in  his  gitt  :  though  percase  if  he  were  alive 
himself,  and  the  question  were  asked  him,  whether  he 
would  be  contented  it  should  be  aliened  for  the  said  two 
causes  or  not,  he  would  sav  yea  ;  but  when  he  is  dead  no 
man  hath  authority  to  interpret  his  gilt  otherwise  than  the 
law  suffereth,  nor  otherwise  than  the  words  of  the  m(t  be. 
And  if  the  condition  be  special,  that  is  to  say,  that  the  land 
shall  not  be  aliened  to  such  a  man  or  such  a  man,  then  the 
condition  shall  be  taken  according  to  the  words,  and  then 
they  ma)T  be  aliened  as  for  that  condition  to  any  other  but 
to  them  to  whom  it  is  expressly  prohibited  that  the  land 
should  not  be  aliened  to.i  And  if  the  lands  in  that  case  be 
aliened  to  one  that  is  not  excepted  in  the  condition,  then  he 
may  alien  the  land  to  him  that  is  first  excepted  without 
breaking  of  the  condition  ;  for  conditions  be  taken  strictly 
in  the  law,  and  without  equity. §  And  thus  methinketh, 
that  because  the  said  condition  is  general,  and  restraineth 
all  alienations,  that  it  may  not  be  aliened  neither  by  the 
law  of  the  realm,  ne  yet  by  conscience,  no  more  for  the 
said  two  causes,  than  it  may  lor  any  other  cause.     And  this 

Shep.  Touch.  126. 

1  This  must  ho  understood  of  an  alienation,  by  which  the  estate  is  dis- 
continued tortiously,  as  a  feoffment  in  lee,  or  a  line  at  Common  law,  for 
't  is  clear  that  tenant  in  tail,  notwithstanding  the  condition,  may  alien  by 
a  line  according  to  the  statute  4  II.  7,  or  by  Common  recovery.  1  Burr. 
84;  Co.  Litt   2:4;  ante,  S6. 

%  Litt.,  sec.  361  ;  Wood's  Conv.  276. 

§  Co.  Litt.  205. 


212  Doctor  and   Student. 

case  must  of  necessity  be  judged  after  the  rules  and  grounds 
of  the  law  of  the  realm,  and   after  no  other  law,   as   me 

seemeth. 

Chap.  XXXVI. — If  the   'patron  ■present  not  within  six 
months,  who  shall  present? 

In  the  same  sum  called  summa  rosella,  in  the  title  bene- 
Jicium,  in  principio,  it  is  asked,  if  the  patron  present  not 
within  six  months,  who  shall  present,  and  within  what  time 
the  presentment  must  be  made?  And  it  is  answered  there, 
that  if  the  patron  present  not  within  six  months,  that  the 
chapter  shall  have  six  months  to  present ;  and  if  the  chap- 
ter present  not  within  six  months,  that  then  the  bishop  shall 
haveothersix  months  ;  and  if  he  be  negligent,  then  the  metro- 
politan shall  have  other  six  months  ;  and  if  he  present  not, 
then  the  presentment  is  devolute  to  the  patriarch  ;  and  if 
the  metropolitan  have  no  superior  under  the  pope,  then  the 
presentment  is  devolute  to  the  pope.  And  so,  as  it  is  said 
there,  the  archbishop  shall  supply  the  negligence  of  the 
bishop,  if  he  be  not  exempt  ;*  and  if  he  be  exempt,  the  pre- 
sentment immediately  shall  fall  from  the  bishop  to  the  pope. 
And,  as  I  suppose,  these  diversities  hold  not  in  the  laws  of 
the  realm. 

Docl.  Then,  I  pray  thee,  shew  me  who  shall  present  by 
the  laws  of  the  realm,  if  the  patron  do  not  present  within 
six  months. 

Stud.  Then  for  default  of  the  patron  the  bishop  shall 
present,  unless  the  king  be  patron  ;  and  if  the  bishop  pre- 
sent not  within  six  months,  then  the  metropolitan  shall  pre- 
sent, whether  the  bishop  be  exempt  or  not :  j  and  if  the 
metropolitan  present  not  within  the  lime  limited  by  the  law, 
then  there  be  divers  opinions  who  shall  present,  for  some 
say  the  pope  shall  present,  as  it  is  said  before,  and  some 
say  the  king  shall  present .% 

Ante,  iSS. 
f  God.  242. 
\  Watson's  Com.  Inc.,  c.  12,  pp.  114,  115,  116. 


Dialogue   II. — Chap.  36.  213 

Doct.  What  reason  make  they  that  say  the  king  should 
present  in  that  case? 

Stud.  This  is  their  reason  ;  they  say  that  the  king  is  pa- 
tron paramount  of  all  the  benefices  within  the  realm.*  And 
they  say  farther,  that  the  king  and  his  progenitors,  kings 
of  England,  without  time  of  mind,  have  had  authority  to 
determine  the  right  of  patronages  in  this  realm  in  their  own 
courts,  and  are  bound  to  see  their  subjects  have  right  in  that 
behalf  within  the  realm,  and  that  in  that  case  from  him  lieth 
no  appeal.  And  then  they  say,  that  if  the  pope  in  this  case 
should  present,  that  then  the  king  should  not  only  leese  his 
patronage  paramount,  but  also  that  he  should  not  sometime 
be  able  to  do  right  to  his  subjects. 

Doct.    In  what  case  were  that? 

Stud.  It  is  in  this  case  :  The  law  of  the  realm  is,  that  if 
a  benefice  fall  void,  then  the  patron  shall  present  within  six 
months;  and  if  he  do  not,  that  then  the  ordinary  shall 
present  :f  but  yet  the  law  is  farther  in  this  case,  that  if  the 
patron  present  before  the  ordinary  put  in  his  clerk,  that  then 
the  patron  of  right  shall  enjoy  his  presentment ;  and  so  it  is 
though  the  time  should  fall  after  to  the  metropolitan,  or  to 
the  pope. \  Ami  if  the  presentment  should  fall  to  the  pope, 
then  though  the  advowson  abode  still  void,  so  that  the  pa- 
tron might  of  right  present,  yet  the  patron  should  not  know 
to  whom  he  should  present,  unless  he  should  goto  the  pope, 
and  so  he  should  fail  of  right  within  the  realm.  Ami  if 
percase  he  went  to  the  pope,  and  presented  an  able  clerk 
unto  him,  and  vet  his  clerk  were  refused,  and  another  pat 
in  at  the  collation  of  the  pope,  or  at  the  presentment  of  a 
stranger  :  yet  the  patron  could  have  no  remedy  tor  the 
wrong  within  the  realm,  lor  the  incumbent  might  abide  still 
out  of  the  realm.  And  therefore  the  law  will  suffer  no  tide 
in  this  case  to  fall  to  the  pope.§      And   they  say,  that  for  a 

1  Burn's  Eccl.  126;   Hob.  143. 
f  Hob-  15  \ ;   Kelw   =;<>. 

X  2  Inst  273;  j  r>.  e".  --77:  Br.  Qua.  Imp.,  pi.  131:  Ilutt.  24:  Hob.  1535 
Moor.  900. 

§  30  Ass.  19;  Fitzh.  Excom.j  pi.  10;  Roll.  Abr.  SS3. 


214  Doctor  and   Student. 

like  reason  it  is,  that  the  law  of  the  realm  will  not  allow  an 
excommencement  that  is  certified  into  the  kind's  court  un- 
der  the  pope's  bulls  :*  for  if  the  party  offered  sufficient 
amends,  and  yet  could  not  obtain  his  letters  of  absolution, 
the  king  should  not  know  to  whom  to  write  for  the  letters 
of  absolution,  and  the  party  could  not  have  right;  and  that 
the  law  will  in  no  wise  suffer. 

Doct.  The  patron  in  that  case  may  present  to  the  ordinary, 
as  long  as  the  church  is  void  ;  and  if  the  ordinary  accept 
him  not,  the  patron  may  have  his  remedy  against  him 
within  this  realm.  But  if  the  pope  will  put  in  an  incumbent 
before  the  patron  present,  it  is  reason  that  he  have  the  pre- 
sentment, as  me  seemeth,  before  the  king. 

Stud.  When  the  ordinary  hath  surcessed  his  time,  J  he 
hath  lost  his  power  as  to  the  presentment,  specially  if  the 
collation  be  devolute  to  the  pope.|  And  also  when  the 
presentment  is  in  the  metropolitan,  he  shall  put  in  the  clerk 
himself,  and  not  the  ordinary.  And  so  there  is  no  default 
in  the  ordinary,  though  he  present  not  the  clerk  of  the 
patron,  if  his  lime  be  past;  and  so  there  lieth  no  remedy 
against  him  for  the  patron. 

Doct.  Though  the  incumbent  abide  still  out  of  the  realm, 
yet  may  a  J^jiarc  Im-pcdit  lie  against  him  within  the  realm  : 
and  if  the  incumbent  make  default  upon  the  distress,  and 
appear  not  to  shew  his  title,  then  the  patron  shall  have  a 
writ  to  the  bishop  according  to  the  statute,  and  so  is  not 
wi lli out  remedy. 

Stud.  But  in  this  case  it  cannot  be  summoned,  attached, 
nor  distrained,  within  the  realm. 

Doct.  He  may  be  summoned  by  the  church,  as  the  ten- 
ant may  in  a  writ  of  right  of  advowson.§ 

Stud.   There   the  advowson   is  in  demand,  and  here  the 

*  Nor  will  it  allow  any  bulls  to  be  obtained  from  Rome,  or  to  be  used  or 
put  in  use  by  any  person  on  pain  of  a  praemunire,  or  high  treason.  See 
th        vcral  statutes  on  this  bead  in  3  Bac.  Abr.,  title  Praemunire. 

-j  Ante,  212. 

J  2  Roll.  Abr.  368. 

§  11  II.  6,  3,  b. 


Dialogue   II. — Chap.  36.  215 


presentment  is  only  in  debate  ;*  and  so  he  cannot  be  sum- 
moned by  the  church  here,  no  more  than  if  it  were  in  a  writ 
of  annuity,  and  there  the  common  return  is,  quod  Clcricus 
est  beneficiatuS)  uon  kabens  Laicum  fcod,  ubi  potest  siidi- 
moneri.  And  though  he  mi<jht  be  summoned  in  the  church, 
yet  he  might  neither  be  attached  nor  distrained  there  ;  and 
so  the  patron  should  be  without  remedy. f 

Doct.  And  it  he  were  without  remedy,  he  should  }'et  be 
in  as  good  case  as  he  should  be  if  the  king  should  present: 
for  it"  the  title  should  be  given  to  the  king,  the  patron  had 
lost  his  presentment  clearly  for  the  time,  though  the  church 
abide  still  void.  For  I  have  heard  say,  that  in  such  pre- 
sentments no  time  alter  the  law  of  the  realm  runneth  to  the 
king. 

Stud.  That  is  true,  but  there  the  presentment  should  be 
taken  from  him  by  right,  and  by  the  law,  and  here  it  should 
be  taken  from  him  against  the  law,  and  there  as  the  law 
could  not  help  him  ;  and  that  the  law  will  not  suffer.:}: 

Doct.  Yet  methinketh  alway  that  the  title  of  the  lapse  in 
such  case  is  given  by  the  law  of  the  church,  and  not  by  the 
temporal  law  :  and  therefore  it  forceth  but  little  what  the 
temporal  law  wiil  in  it,  as  me  seemeth. 

Stud.  In  such  countries  where  the  pope  hath  power  to 
determine  the  right  of  temporal  things,  I  think  it  is  as  thou 
sayest  ;  but  in  this  realm  it  is  not  so.  And  the  right  of  pre- 
sentment is  a  temporal  thing,  and  a  temporal  inheritar.ee  ;§ 
and  therefore  I  think  it  belongeth  to  the  king's  law  to  deter- 
mine,  and  also  to  make  laws  who  shall  present  after  six 
months,  as  well  as  before,  so  that  the  title  of  examination 
of  ability  or  non-ability  be  not  thereby  taken  from  the  or- 
dinary. ||  And  in  like  wise  it  is  ot"  avoidance  of  benefices, 
that  is  to  say,  then   it  shall  be  judged  by  the  king's  laws 

F.  N.  B.  74;   2  II.  6,  3.  b;  2  Inst.  4. 
t3  Burn's  Ecc.  Law,  iSS. 
J  Post-  ^16;  Watson's  Com.  Inc.  16. 
§^  Inst.  J7.5 ;  ante,  189. 
||  Ante,  iSS. 


216  Doctor  and  Student. 

v j 5 

when  a  benefice  shall  be  said  void,*  and  when  not,  and 
not  by  the  law  of  the  church  :|  as  when  a  parson  is  made  a 
bishop,^  or  accepleth  another  benefice  without  a  licence,  or 
resigneth,  or  is  deprived  ;  in  these  cases  the  common  law 
saith,  that  the  benefices  is  void,  and  so  they  should  be, 
though  a  law  were  made  by  the  church  to  the  contrary. § 
And  so  if  the  pope  should  have  any  title  in  this  case  to  pre- 
sent, it  should  be  by  the  law  of  the  realm.  And  I  have 
not  seen  ne  heard  that  the  law  of  the  realm  hath  given  any 
title  to  the  pope  to  determine  any  temporal  thing  that  may 
be  lawfully  determined  by  the  king's  court. 

Doct.  It  seemeth  by  that  reason  that  thou  hast  made  now, 
that  thou  preferrest  the  king's  authority  in  presentments  be- 
fore the  pope's  ;  and  that  methinketh  should  not  stand  with 
the  law  of  God,  sith  the  pope  is  the  vicar-general  under  God. 

Stud.  That  I  have  said  proveth  not  that  for  the  highest 
preferment  in  presentments  he  is  to  have  authority  to  ex- 
amine the  ability  of  the  parson  that  is  presented,  for  if  the 
presentee  be  able,  it  sufficeth  to  the  discharge  of  the  ordi- 
nary by  whomsoever  he  be  presented,  and  that  authority  is 
not  denied  by  the  law  of  the  realm  to  belong  alway  to  the 
spiritual  jurisdiction.  ||  But  my  meaning  is,  that  as  to  the 
right  of  presentments,  and  to  determine  vyho  ought  to  pre- 
sent, and  who  not,  and  at  what  time,  and  when  the  church 
shall  be  judged  to  be  void,  and  when  not,  belong  to  the 
king  and  to  his  laws  :  or  else  it  were  a  thing  in  vain  for  him 
to  hold  plea  of  advowsons,  or  to  determine  the  right  of 
patronage  in  his  own  courts,  and  not  to  have  authority  to 
determine  the  right  thereof,  and  those  claims  seem  not  to 
be  against  the  law  of  God.lf  And  so  me  seemeth  in  this 
case  the  presentment  is  given  the  king. 

Duct.   And  it  the  king  should  have  right  to  present,  then 

Po  i.  jiS. 
I  Pal.   $44;   Hob.  158- 

JWithouta  commendam.    Watson'6  Clergyman's  Law,  2065  Hob.  143. 
§3  Com;,:,'    Digi    t,  207;   Watson'6  Com.  Inc.  5,  8,  18,  19,  27. 
|1  Watson's  Clergyman's  Law,  212;  Burn's  Ecc.  Law,  137. 
\  Ante,  210. 


Dialogue   II. — Chap.  37.  217 

might  the  church  happen  to  continue  void  for  ever  ;  for  as 
we  have  said  before,  no  time  runneth  to  the  king  in  such 
presentment. 

Stud.  If  any  such  case  happen,  if  the  king  present  not, 
then  may  the  ordinary  set  in  a  deputy  to  serve  the  cure,  as 
he  may  do  when  negligence  is  in  other  patrons  that  may 
present,  and  do  not;*  and  also  it  cannot  be  thought  that 
the  king,  which  hath  the  rule  and  governance  over  the  peo- 
ple, not  only  ot  their  bodies,  but  also  of  their  souls,  will 
hurt  his  conscience,  and  suffer  a  benefice  continually  to 
stand  without  a  curate,  no  more  than  he  doth  in  advowsons 
that  be  of  his  own  presentment. 

Chap.  XXXVII. —  Whether  the  -presentment  and  collation 

of  all  benefices  and  dignities,  voiding  at  Rome,  belong- 
eth  only  to  the  pope. 

In  the  same  sum  called  summa  rosella,  in  the  tide  bene- 
fieium  primtim,  in  the  13th  article,  it  is  said,  that  benefices, 
dignities  and  parsonages  voiding  in  the  court  of  Rome  may 
not  be  given  but  by  the  pope;  and  likewise  of  the  pope's 
servant-;,  and  ot  other  that  come  and  go  from  the  court,  if 
they  die  in  places  nigh  to  the  court  within  two  days  journey, 
all  these  belong  to  the  pope  :  but  if  the  pope  present  not 
within  a  month,  then  alter  the  month  they  to  whom  it  be- 
longeth  to  present,  may  present  bv  themselves  only,  or  by 
their  vicar-general,  if  they  be  in  far  parts.  And  these  say- 
ings hold  not  in  the  laws  of  the  realm. 

Doct.  What  i<  the  cause  that  they  hold  not  in  this  realm 
as  w  ell  as  in  ;ill  other  realms? 

Stud  One  cause  is  this  :  The  king  in  this  realm,  ace  >rd- 
ing  to  die  ancient  right  of  his  crown,  o(  all  his  advowsons 
that  be  ot  his  patronage  ought  to  present,  ami  in  like  wise 
other  patrons  ot'  benefices  ol  t  eir  presentment  :  am!  the 
pleas  oi  the  right  of  presentments  oi  benefices  within  this 
realm  belong  to  the  king  and  his  crown. f     Ami  these  titles 

Watson's  Clergyman's  Law,  120;  2  15.  C.  ^77- 

|  Ante,  J 15. 


218  Doctor  and  Student. 

cannot  be  taken  from  the  king  and  his  subjects  but  by  their 
assent;  and  the  law  that  is  made  therein  to  put  away  the 
title  bindeth  not  in  this  realm.  And  over  that  before  the 
statute  of  25  Ed.  3,  there  was  a  great  inconvenience  and 
mischief  by  reason  of  divers  provisions  and  reservations 
that  the  pope  made  to  the  benefices  in  this  realm,  contrary 
to  the  old  right  of  the  king,  and  other  patrons  in  this  realm, 
as  well  to  the  archbishopricks,  bishopricks,  deanries  and 
abbies,  as  to  other  dignities  and  benefices  of  the  church. 
And  many  times  aliens  thereby  had  benefices  within  the 
realm  that  understood  not  the  English  tongue,  so  that  they 
could  not  counsel  ne  comfort  the  people  when  need  re- 
quired ;  and  by  that  occasion  great  riches  was  conveyed 
out  of  the  realm.  Wherefore,  to  avoid  such  inconveniences, 
it  was  ordained  by  the  said  statute,  that  all  patrons,  as  well 
spiritual  as  temporal,  should  have  the  presentments  freely  : 
and  in  case  the  collation  or  provision  were  made  by  the 
pope  in  disturbance  of  any  spiritual  person,  that  then  for 
that  time  the  king  should  have  the  presentment;  and  if  it 
were  in  disturbance  of  any  lay  patron,  that  then  if  the  pa- 
tron presented  not  within  the  half-year  after  such  voidance, 
nor  the  bishop  of  the  place  within  a  month  alter  the  half- 
year,  that  then  the  king  should  have  also  the  presentment, 
and  that  the  king  should  have  the  profits  of  the  benefices 
so  occupied  by  provision,  except  abbies  and  priories,  and 
other  houses  that  have  college  and  covent,  and  there  the 
college  and  covent,  to  have  the  profits.  And  because  the 
statute  is  general,  and  excepteth  no  such  benefices  as  shall 
void  in  the  court  of  Rome,  or  in  such  other  place  as  before 
appeareth,  therefore  they  be  taken  to  be  within  the  pro- 
vision of  the  said  statute,  as  well  as  the  benefices  that  void 
within  the  realm  :  ami  all  provisors  and  executors  of  the 
said  collations  and  provisions,  and  all  their  attornies,  nota- 
ries and  mainlainers,  shall  be  out  of  the  protection  of  the 
king,  and  shall  have  like:  punishment  as  they  should  have 
for  executing  of  benefices  voiding  within  the  realm.* 

*  Sec  likewise  slat.  38  Ed.  3,  st.  2 ;   12  R.  2,  c.  15 ;   13  R.  2,  st.  2 ;  7  R.  2, 
c.  12,  and  16  R.  2,  c-  5. 


Dialogue   II. — Chap.  38.  219 

Doct.  But  I  cannot  see  how  the  said  statute  may  stand 
with  conscience,  that  so  far  restrained  the  pope  of  his  Lib- 
erty, which  as  me  seemeth,  he  ought  in  this  case  of  right 
to  have. 

Stud.  Because  (as  I  suppose)  that  patrons  ought  of  right 
to  have  their  presentments  under  such  manner  as  they  claim 
them  in  this  realm,  as  I  have  said  before,  and  as  in  the  26th 
chapter  of  this  book  appeareth  more  at  large.  Also  foras- 
much as  it  appeareth  evidently,  that  great  inconvenience 
followed  upon  the  said  provisions,  and  that  the  said  statute 
was  made  to  avoid  the  same,  which  sith  that  time  hath  been 
suffered  by  the  pope,  and  hath  been  alway  used  in  this 
realm  without  resistance,  it  seemeth  that  the  said  statute 
should  therefore  stand  with  good  conscience. 

Chap.  XXXVIII. — If  a  house   by   chance  fall   upon  a 
horse  /hat  is  borrozved,  zvho  shall  bear  the  loss? 

In  the  said  sum  called  summa  rosclla,  the  said  title  casus 
J'or/uftits,  in  the  beginning,  is  put  this  case  :*  If  a  man 
lend  another  a  horse,  which  is  called  there  a  deftos/tum, 
and  a  house  by  chance  lalleth  upon  the  horse,  whether  in 
that  case  Ih-  shall  answer  tor  the  horse  ?  And  it  is  answered 
there,  that  if  the  house  were  like  to  fall,  that  then  it  cannot 
betaken  as  a  chance,  but  as  the  default  of  him  that  had  the 
horse  delivered  to  him  :  hut  if  the  house  were  strong,  and 
ol  likelihood,  and  by  common  presumption,  in  no  danger 
of  falling,  but  that  ii  fell  by  a  sudden  tempest,  or  sucli  other 
Casualty,  thai  then  it  shall  be  taken  as  a  chance,  and  he  that 
had  the  keeping  of  the  horse  shall  be  discharged.  And 
though  tins  diversity  agreeth  with  the  laws  of  the  realm, 
yet  tor  the  more  plainer  declaration  thereof,  and  tor  the 
more  like  cases  and  chances  that  may  happen  to  goods, 
that  a  man  hath  in  his  keeping  that  he  not  his  own,  I  shall 
add  a  little  more  thereto  that  shall  be  somewhat  necessary, 
as  methinketh,  to  the'ordering  of  conscience.     First,  a  man 

*  See  William  Jones,  Essay  on  Bailments,  6S. 


220  Doctor  and  Student. 

may  have  of  another  by  way  of  loan  or  borrowing  money, 
corn,  wine,  and  such  other  things,  where  the  same  thing 
cannot  be  delivered  if  it  be  occupied,  but  another  thing  of 
like  nature  and  like  value  must  be  delivered  for  it ;  and  such 
things  he  that  the}r  be  lent  to,  may  by  force  of  the  loan  use 
as  h.s  own,  and  therefore  if  they  perish,  it  is  at  his 
jeopard}' ;  and  this  is  most  properly  called  a  loan.  Also  a 
man  may  lend  to  another  a  horse,  an  ox,  a  cart,  or  such 
other  things  as  may  be  delivered  again,  and  they  by  force 
of  that  loan  may  be  used  and  occupied  reasonably  in  such 
manner  as  they  were  borrowed  for,  or  as  it  was  agreed  at 
the  time  of  the  loan  that  they  should  be  occupied  :  and  if 
such  things  be  occupied  otherwise  than  according  to  the 
intent  of  the  loan,  and  in  that  occupation  they  perish,  in 
what  wise  soever  they  perish,  so  it  be  not  in  default  of  the 
owner,  he  that  borrowed  them  shall  be  charged  therewith 
in  law  and  conscience  :*  and  if  he  that  borrow  them  occupy 
them  in  such  manner  as  they  were  lent  for,  and  in  that  oc- 
cupation they  perish  in  default  of 'him  that  they  were  lent 
to,  then  he  shall  answer  for  them  :  and  if  they  perish  not 
through  his  default,  then  he  that  owneth  them  shall  bear  the 
loss.  Also  if  a  man  have  goods  to  keep  to  a  certain  day,  for  a 
certain  recompence  for  the  keeping,  he  shall  stand  chargedor 
not  charged  after  as  default  or  no  default  shall  be  in  him,  as 
before  appeareth  :  and  so  it  is  if  he  have  nothing  for  the  keep- 
ing. But  if  he  have  lor  the  keeping,  and  make  a  promise  at 
the  time  ot  the  delivery,  to  redeliver  them  safe  at  his  peril, 
then  he  shall  be  eharged  with  all  chances  that  may  fall. 
But  if  he  make  that  promise,  and  have  nothing  for  keeping, 
I  think  he  is  bound  to  no  such  casualties,  but  that  be  wilful 
and  his  own  default,  for  that  is  a  mule  or  a  naked  promise, 
whereupon,  as  I  suppose,  no  action  lieth.f  Also  if  a  man 
find  goods  ot  another,  if  they  be  after  hurt  or  lost  by  wilful 
negligence,  he  shall  be  charged  lo  tin-  owner:    but  if  they 

*  2  B.  C  4.S4;  Lord  Ruym.  915. 

■;  Hargrave's  edition  of  Coke  upon  Littleton,  89,90;  Lord  Raym.  909;  12 
Mod.  4S7 ;  Sir  William  Jones  on  Bailment,  45;  Ow.  141;  I  Leon,  224;  1 
Cro.  219 


Dialogue    II. — Chap.  n>9'  <1-1 


be  lost  by  other  casualty,  as  if  they  be  laid  in  a  house  thaJ 
by  chance  is  burned,  or  if  he  deliver  them  to  another  to 
keep,  that  runneth  away  with  them,  I  think  he  is  discharged. 
And  these  diversities  hold  most  commonly  upon  pledges,  or 
where  a  man  hireth  goods  of  his  neighbour  to  a  certain  day 
for  certain  money.*  And  many  other  diversities  be  in  the 
law  of  the  realm,  what  shall  be  to  the  jeopard}'  of  the  one, 
and  what  of  the  other,  which  I  will  not  speak  ot  at  this 
time.  And  by  this  it  may  appear,  that  it  is  commonly 
holden  in  the  laws  of  England,  if  a  common  carrier  go  by 
the  ways  that  be  dangerous  for  robbing,  or  drive  by  night, 
or  in  other  inconvenient  time,  and  be  robbed  ;|  or  if  he 
overcharge  a  horse  whereby  he  falleth  into  the  water,  or 
otherwise,  so  that  the  stuff  is  hurt  or  impaired ;  that  he 
shall  stand  charged  for  his  misdemeanor  :  and  if  he  would 
percase  refuse  to  carry  it,  unless  promise  were  made  unto 
him  that  he  shall  not  be  charged  for  no  misdemeanor  that 
should  be  in  him,  the  promise  were  void,  for  it  were  against 
reason  and  against  good  manners,  and  so  it  is  in  all  other 
cases  like.  And  all  these  diversities  be  granted  by 
secondary  conclusions  derived  upon  the  law  of  reason, 
without  an)r  statute  made  in  that  behalf.  And  peradventure 
laws,  and  the  conclusions  therein,  be  the  more  plain,  and 
the  more  open.  For  it'  any  statute  were  made  therein,  I 
think  verily  more  doubts  and  questions  would  arise  upon 
the  statute,  than  doth  now  when  they  be  only  argued  and 
judged  after  the  Common  law. 

Chap.  XXXIX. — If  a  friest  have  won  much  goods  by 
saying  of  moss,  whether  he  max  give  those  goods,  or 
make  a  will  of  them. 

In  the  said  sum  called  summit  rosella.  in  the  tide  clerieus 
quartus,  the  3d  article,  is  asked  this  question  :  If  a  priest 
have  won   much  goods  by  saying  oi  mass,$    whether  he 

*  Sir  William  Jones  on  Bailment,  7S. 
t  Noy's  Max.  9J. 

{Seethe  Statutes  2$  Eliz.,  e.  1,  s.  4,  9.  10,  II,  and  11  and  12  W.,  c.  4,  s 
3,  5,  and  3  J.,  c.  5,  s.  1,  against  saving  and  hearing  mass. 


222  Doctor  and  Student. 

may  give  those  goods,  or  make  a  will  of  them?  Whereto  it 
is  answered  there,  that  he  may  give  them,  or  make  a  will 
of  them,  specially  when  a  man  bequeaths  money  for  to  have 
masses  said  for  him.*  And  the  like  law  is  of  such  things 
as  a  clerk  winneth  by  the  reason  of  an  office  :  for  it  is  said 
there,  that  such  things  come  to  him  by  reason  of  his  own 
person.  Which  sayings  I  think  accord  with  the  law  of  the 
realm.  But  forasmuch  as  the  said  article,  and  in  divers 
other  places  of  the  said  chapter,  and  in  divers  other  chapters 
of  the  said  sum,  is  put  great  diversity  between  such  goods  as 
a  clerk  hath  by  reason  of  his  church,  and  such  goods  as  he 
hath  by  reason  of  his  person  ;  and  that  he  must  dispose  such 
goods  as  he  hath  by  reason  of  his  church  in  such  manner 
as  is  appointed  by  the  law  of  the  church,  so  that  he  may 
not  dispose  them  so  liberally  as  he  may  the  goods  that  come 
by  reason  of  his  own  person  :  therefore  I  shall  a  little  touch 
what  spiritual  men  may  do  with  their  goods  after  the  law 
of  the  realm. 

jFtrst,  A  bishop,  of  such  goods  as  he  hath  with  the  clean 
and  chapter,  he  may  neither  make  gift  nor  bequest  ;f  but 
of  such  goods  as  he  hath  of  his  own  by  reason  of  his  church, 
or  of  the  gift  of  his  ancestors,  or  of  any  other,  or  of  his 
patrimony,  he  may  both  make  gifts  and  bequests  lawfully. 
And  an  abbot  of  the  goods  of  his  church  may  make  a  gift, 
and  that  gift  is  good  as  to  the  law :  but  what  it  is  in  con- 
science, that  is  after  the  cause  and  intent  and  quality  of  the 
gift.  For  if  it  be  so  much  that  it  notably  hurteth  the  house 
or  the  covent,  or  if  he  give  away  the  books  or  the  chalices, 
or  such  other  things  as  belong  to  the  service  of  God,  he 
ofl'ench  th  in  conscience  \\  and  yet  he  is  not  punishable  in 
the  law,  ne  yet  by  sabpccna,  after  some  men,  ne  in  none 
otherwise  but  by  the  law  of  the  church,  as  a  waster  of  the 
goods  of  his  monastery.      But  nevertheless  I  will  not  fully 

*  Such  a  bequest  as  this  would  now  be  superstitious  and  void.  Duke's 
Charitable  Uses,  106. 

fSwin.  on  Wills,  107;  Shep.  Touch.  452;  Perk.,  sec.  497 ;  1  Roll.  Abr. 
60S. 

JAnte,  32. 


Dialogue   II. — Chap.  39.  223 

hold  that  opinion,  as  to  that  that  belongeth  necessarily  to 
the  service  of  God,  whether  any  remedy  lie  against  him  or 
not,  but  remit  it  to  the  judgment  of  other.*  And  of  a  dean 
and  chapter,  and  a  master  and  brethren,  of  goods  that  they 
have  to  themselves,  and  also  of  goods  that  they  have  with 
the  chapter  and  brethren  the  same  diversity  holdeth,  as  ap- 
peareth  before  of  a  bishop  and  the  dean  and  chapter  ;  except 
that  in  the  case  of  a  master  and  brethren  the  goods  shall  be 
ordered  as  shall  be  assigned  by  the  foundation.  And  more- 
over, of  a  parson  of  a  church,  vicar,  or  chantry  priest,  or 
such  other,  all  such  goods  as  they  have,  as  well  such  as 
they  have  by  reason  of  the  parsonage,  vicarage,  or  chaun- 
try,  as  that  they  have  by  reason  of  their  own  person,  they 
may  lawfully  give  and  bequeath  where  they  will  after  the 
Common  law  :  and  if  they  dispose  part  among  the  parish- 
ioners, and  part  to  the  building  of  churches,  or  give  part  to 
the  ordinary,  or  to  poor  men,  or  in  such  other  manner,  as 
it  is  appointed  by  the  law  of  the  church,  they  offend  not 
therein,  unless  they  think  themselves  bounden  thereto  by 
duty,  and  by  authority  of  the  law  of  the  church,  not  regard- 
ing the  king's  laws  :f  for  if  they  do  so,  it  seemeth  they  resist 
the  ordinance  of  God,  which  hath  given  power  to  princes 
to  make  laws.  But  there,  as  the  pope  hath  sovereignty  in 
temporal  things  as  he  hath  in  spiritual  things,  there  some 
say  that  the  goods  of  priests  must  in  conscience  be  disponed 
as  is  contained  in  the  said  sum.  But  that  holdeth  not  in 
this  realm  ;  for  the  goods  of  spiritual  men  be  temporal  in 
what  manner  soever  they  come  to  them,  and  must  be 
ordered  after  the  temporal  law,  as  the  goods  of  the  tem- 
poral men  must  be.  Howbeit,  if  there  were  a  statute 
made  in  this  case  of  like  effect  in  many  points  as  the  law 
of  the  church  is,  I  think  it  were  a  right  good  and  a  profit- 
able statute. 

*I  Roll.  Abr.  60S;  Wood's  Conv.  795;  Swinburne  on  Wills,  107. 
t  Duke's  Charitable  Uses,  10S,  109. 


224  Doctor  and  Student. 


Chap.  XL- —  Who  shall  succeed  a  clerk  that  dicth  intes- 
tate? 

In  the  said  sum,  called  rosclla,  in  the  chapter  clcricus 
quart  us,  the  7th  article,  is  asked  this  question,  Who  shall 
succeed  to  a  clerk  that  dieth  intestate?  And  it  is  answered, 
That  in  goods  gotten'  by  reason  of  the  church,  the  church 
shall  succeed  ;*  but  in  other  goods  his  kinsmen  shall  suc- 
ceed after  the  order  of  the  law,  and  if  there  be  no  kinsman, 
then  the  church  shall  succeed.  And  it  is  said  farther,  That 
goods  gotten  by  a  canon  secular  by  reason  of  his  church 
or  prebend  shall  not  go  to  his  successor  in  the  prebend,  but 
to  the  chapter. f  But  where  one  that  is  beneliced  is  not  of 
the  congregation,  but  he  hath  a  benefice  clearly  separate, 
as  if  he  be  a  parson  of  a  parish-church,  or  is  a  president, 
or  an  archdeacon  not  beneficed  b}r  the  chapter,  then  the 
goods  gotten  by  reason  of  his  benefice  shall  go  to  his  suc- 
cessor, and  not  to  the  chapter.  And  none  of  these  say- 
ings hold  place  in  the  laws  of  England. 

Doct.  What  is  then  the  law,  if  a  parson  of  a  church  or 
a  vicar  in  the  country  die  intestate,  or  if  a  canon  secular  be 
also  a  parson,  and  have  goods  by  reason  thereof,  and  also 
by  a  prebend  that  he  hath  in  a  cathedral  church,  and  he 
die  intestate,  who  shall  have  his  goods? 

Stud.  At  the  Common  law  the  ordinary  in  all  these  cases 
may  administer  the  goods,  and  after  he  must  commit  ad- 
ministration to  the  next  faithful  friends  of  him  that  is  dead 
intestate  that  will  desire  it,  as  he  is  bound  to  do  where  lay- 
men that  have  goods  die  intestate. %  And  if  no  man  de- 
sire to  have  administration,  then  the  ordinary  may  admin- 
ister^ and  see  the  debts  payed  :   and   he  must  beware  that 

:;:'  Ante,  222. 

t  Swinb.  107. 

%  Swinb.  107;  vide  the  Statutes  31  Ed.  3,  c.  11,  and  21  II.  8,  c.  5;  B.  C.? 
2  vol.  511. 

§  It  is  usual  for  the  ordinary  in  case  none  of  the  friends  or  creditors  of 
the  deceased  will  administer  to  his  effects,  to  commit   administration  to 


Dialogue   II. — Chap.  40.  225 

he  pay  the  debts  in  such  order  as  is  appointed  in  the  Com- 
mon law  :  tor  if  he  pay  debts  upon  simple  contracts  before 
an  obligation,  he  shall  be  compelled  to  pay  the  debt  upon 
the  obligation  of  his  own  goods,  if  there  be  not  goods  suf- 
ficent  of  him  that  died  intestate.*  And  though  it  he  suf- 
fered in  such  case  that  the  ordinary  may  pay  pound  and 
poundlike,  that  is,  to  apportion  the  goods  among  the  debtors 
alter  his  discretion,  yet  by  the  rigour  of  the  Common  law 
he  might  be  charged  to  him  that  can  first  have  his  judgment 
against  him. J  And  furthemore,  by  that  is  said  before  in 
the  last  chapter  it  appeareth,  that  if  a  bishop  that  hath  goods 
of  his  bishoprick  or  of  his  patrimony,  or  a  master  of  a  col- 
lege, or  a  clean,  of  goods  that  they  have  of  their  own  only 
to  themselves,  die  intestate,  that  the  ordinary  shall  commit 
administration  thereof,  as  before  appeareth  :t  and  if  they 
make  executors,  then  the  executors  shall  have  the  ministra- 
tion thereof.  But  the  heirs  nor  the  kinsman,  by  that  reason 
only  that  they  be  heirs  or  of  kin  to  him  that  is  deceased, 
shall  have  no  meddling  with  his  goods, §  except  it  be  by 
custom  of  some  countries,  where  the  heirs  shall  have  heii 
looms,  or  where  the  children  (the  debts  and  legacies||  paid) 

such  persons  of  discretion  as  he  approves  of,  or  to  grant  him  letters  ad  col- 
ligendum bona  de fundi.     Wood's  Con  v.  147. 

•Office  of  Exec.  216;   ante,  132;  Nov's  Max.  104. 

J-  Ante,  130. 

\  Ante.  224. 

§  Ante,  130;   Co.  Litt.  iS,  iS;. 

||  The  term  legacies  in  this  place  appears  to  be  improper,  as  the  customs 
of  London,  principality  of  Wales,  and  the  province  of  York,  to  which  it 
is  presumed  a  reference  is  here  made,  cannot  take  place  hut  where  a  free- 
man or  an  inhabitant  die-  without  making  any  disposition  of  his  effects, 
and  if  so  he   can  't  give  any  legacies. 

In  London  th  ■  children  are  intitled  to  their  reasonable  part  (if  not 
barred  by  ad\  ancement  or  will  after  the  debts,  customary  funeral  expences, 
and  the  widow's  chamber  are  deducted,  4  Burn's  Eccl.  Law.  370;  and  in  the 
province  of  York,  and  principality  of  Wales  (after  the  funeral  expences 
and  necessary  charges  are  paid),  lb.  392.  For  the  nature  and  quantum  of  this 
reasonable  part  within  these  three  distinct  places,  see  1  P.  Will.  J41 ;  4 
Burn's  Eccl.  Law,  392,  393,  412;  and  see  further  the  several  statutes  relat- 
ing to  this  subject,  viz.,  4  and  5  W.  &  M.,  c.  2,  explained  by  2  and  3  Ann., 

15 


226  Doctor  and  Student. 

shall  have  a  reasonable  part  of  the  goods,  after  the  custom 
of  the  country.* 

Chap.  XLI. — If  a  man  be  outlawed  of  felony,  or  be  at- 
tain led  for  murthcr  or  felony,  or  that  is  an  Ascismus, 

may  be  slain  by  every  stranger. 

Doct.  It  appeareth  in  the  said  sum,  called  summa  an- 
gelica, in  the  2ist  chapter,  in  the  title  of  Ascismus,  the 
second  paragraph,  that  he  is  an  Ascismus  that  will  slay  men 
for  money  at  the  instance  of  every  man  that  will  move  him 
to  it ;  and  such  a  man  may  lawfully  be  slain  not  only  by  the 
judge,  but  by  every  private  person.  But  it  is  said  there  in 
the  fourth  paragraph,  that  he  must  first  be  judged  by  the 
law  as  an  Ascismus,  ere  he  may  be  slain,  or  his  goods 
seised.  And  it  is  said  farther  there  in  the  second  paragraph, 
that  also  in  conscience  such  an  Ascismus  may  be  slain,  if 
it  be  done  through  a  zeal  of  justice,  and  else  not.  Is  not 
the  law  of  the  realm  likewise  of  men  outlawed,  abjured,  or 
judged  for  felony? 

Stud.  In  the  law  of  the  realm,  there  is  no  such  law,  that 
a  man  shall  be  judged  as  an  Ascismus :  ne  if  a  man  be  in 
full  purpose,  for  a  certain  sum  of  money  that  he  hath  re- 
ceived, to  slay  a  man,  yet  it  is  no  felony  ne  murther  in  the 
law  till  he  hath  done  the  act :  for  intent  of  felon}'-  nor  mur. 
ther  is  not  punishable  by  the  Common  law  of  the  realm, f 
though  it  be  deadly  sin  before  God  ;|  but   in   treason,  or  in 

c.  5,  for  the  province  of  York;  7  and  8  W.  3,  c.  38,  for  Wales,  and  11  Geo. 
4,  c.  18,  for  London. 

*  4  Burn's  Eel.  Law,  247. 

f  But  by  the  law  as  it  stood  in  very  ancient  times,  a  bare  intention  to 
commit  felony,  was  held  so  criminal  that  it  was  punishable  as  felony  itself, 
when  it  missed  its  effect,  through  chance  or  accident.  1  I  law.  P.  C,  cap. 
25,  p.  655  for  voluntas  reputabatur  pro  facto,  3  Inst.  161 .  And  though  it 
Keems  to  be  settled  that  at.  this  day  felony  shall  not  be  laid  to  the  charge 
of  an  offender  where  in  fact  none  is  committed,  yet  the  party  may  be  se- 
verely fined  for  such  an  intent  on.  1  Haw.  P.  C,  cap.  25,  p.  6".  And  by 
a  modern  statute,  viz,  7  Geo-  2,  21,  an  assault  with  an  intent  to  rob  is 
felony,  but  the  offender  may  chuse  transportation. 

\  1  II.  P.  C.  109;  3  Inst.  5,  6,  12  ;  5  Mod.  207,  208;  Savil.  31,  pi.  73. 


Dialogue   II. — Chap.  41.  227 

some  other  particular  cases,  by  statute*  that  intent  may  be 
punished.  And  though  a  man  in  such  case  kill  a  man  for 
money,  yet  he  shall  not  be  attainted  that  he  is  an  Asci'smus; 
for,  as  it  is  said  before,  there  is  no  such  term  of  Ascismtts 
in  the  law  of  the  realm  :  bet  lie  shall  in  such  case  be  ar- 
raigned upon  the  murther,  and  if  he  confess  it,  or  plead 
that  he  is  not  guilty,  and  is  found  guilty  by  twelve  men,  he 
shall  have  judgment  of  life,  and  of  member,  and  shall  for- 
feit his  lands  and  goods.  And  like  law  is  of  an  appeal 
brought  of  the  murther;  if  he  stand  dumb,  and  will  not 
answer  to  the  murther,  he  shall  be  attainted  of  the  murther, 
and  shall  forfeit  life,  lands  and  goods. f  But  if  he  be  ar- 
raigned of  the  murther  upon  an  indictment  at  the  king's 
suit,  and  thereupon  standeth  dumb,  and  will  not  answers 
there  he  shall  not  be  attainted  of  the  murther,  but  he  shall 
have  Paine  fort  and  dure,  that  is  to  say,  he  shall  be  pressed 
to  death, %  and  he  shall  there  forfeit  his  goods  and  not  his 
lands.  But  in  none  of  these  cases,  that  is  to  say,  though  a 
man  be  outlawed  for  murther  or  felony,  or  be  abjured,  or 
that  he  be  otherwise  attainted  ;  yet  it  is  not  lawful  for  any 
man  to  murther  him,  or  slay  him,  ne  to  put  him  in  execu- 
tion, but  by  authority  of  the  king's  laws.  Insomuch  that 
if  a  man  be  adjudged  to  have  Paine  fort  and  dure,  and  the 
officer  beheadeth   him,  or  on  the  contrary  wise  putteth   him 

Ni>'  stat.  25  Ed.  3;   slat.  5,  c.  e,  par.  i. 

t  4  H-  C  194;  Co.  Litt  41  ;  i  Kelying,  37;  2  In^t.  17S;  Bro.  Corone,  p!. 
43;  Bro.  Appeal,  40;  2  Hale's  P.  C.  317— contra,  21  Ed.  3,  iS;  Bro.  P. .in, 
pi  S;  2  Haw.  1'.  C.  3:9:  Ba  m's  Use  of  tlie  Law,  39;  2  Haw.  P.  C.  331, 
cap-  30,  s.  19;    1   Hale*-.  P.  C    4  ,7 

X  But  now  by  the  statute  12  Geo.  3,  c.  30,  if  any  person  beine;  arraigned  on 
an_v  indictment  of  appeal  of  felony,  or  on  any  indictment  tor  piracy,  shall 
upon  mi  h  arraignm  :it  stand  mute,  or  will  not  answer  directly  to  the  felony 
or  piracy,  he  .shall  be  convicted  ol  the  offence,  and  the  court  shall  there- 
upon award  judgment  and  execution  in  the  same  manner  as  if  he  had 
been  convicted  by  verdict  or  c  mfession,  and  sucb  judgment  shall  have  all 
the  same  consequences  as  a  conviction  by  verdict  or  confession.  The  reader 
will  observe,  that  the  crimes  of  treason  and  petit  larceny  arc  not  mentioned 
in  this  act,  and  the  reason  is  because  in  these  offences,  standing  mute  was 
equal  to  conviction  before  the  statute,  and  the  prisoner  was  not  sentenced 
to  the  peine  forte  et  dure.     2  Haw.  P.  C,  c.  30,  sees.  9,  10. 


228  Doctor  and  Student. 

to  paine  forte  and  dure,  where  he  should  behead  him  he  of- 
fendeth  the  law.  And  if  an  officer  which  hath  authority  to 
put  a  man  to  death,  may  not  put  him  to  death  but  accord- 
ing to  the  judgment,  then  melhinketh  it  should  tollovv  that, 
more  stronger  a  stranger  may  not  put  such  a  man  to  death 
of  his  own  authority  without  commandment  of  the  law.*  But 
if  the  judgment  be  that  he  shall  be  hanged  in  chains,  and 
the  officer  hangeth  him  in  other  things,  and  not  in  chains, 
I  suppose  he  is  not  guilty  of  his  death.  But  some  say  he 
shall  there  make  a  fine  to  the  king,  because  he  hath  not 
followed  the  words  of  the  judgment. 

Also,  if  a  man  that  is  no  officer  would  arrest  a  man  that 
is  outlawed,  abjured,  or  attainted  of  murther  or  felony,  as  is 
aforesaid,  and  he  disobeyeth  the  arrest,  and  by  reason  of 
the  disobedience  he  is  slain  ;f  I  suppose  the  other  shall  not 
be  impeached  for  his  death  ;  for  it  is  lawful  unto  every  man 
to  take  such  persons,  and  to  bring  them  forth  that  they  may 
be  ordered  according  to  the  law.  But  if  a  Cafiias  be  di- 
rected unto  the  sheriff'  to  take  a  man  in  an  action  of  debt 
or  trespass,  there  no  man  may  take  the  man,  but  he  have 
authority  from  the  sheriff:  and  if  any  man  attempt  of  his 
own  authority  to  take  him,  and  he  resisteth,  and  in  the  re- 
sisting is  slain,  he  that  would  have  taken  him  is  guilty  of 
his  death. 

Chap.  XLII. —  Whether   a  man  shall  be  bounden  by  the 
act  or  offence  of  his  servant  or  officer. 

In  the  said  sum  called  minima  angelica,  in  the  title  dominus, 
4th  paragraph,  is  asked  this  question,  Whether  a  man  shall 
be  charged  for  his  household?  And  it  is  said  there,  that 
he  shall,  when  the  household  offendeth  in  an  office  or  min- 
istry lhat  the  master  is  the  chief  officer  of,  and  he  hath  the 
work  and  the  profit  of  the  household:  for  it  shall  be  his 
default  that  he  would  chuse  such  servants,  for  he  ought  to 

Finch  Law,  31  ;  3  Inst.  54;   1   Hal.  P.  C.  501. 
f4B.  C.  3i5- 


Dialogue   II. — Chap.  42.  229 

appoint  I  onest  persons.*  But  is  said  there,  that  it  is  to  be 
understood  civilly,  and  not  criminally,  whereby,  as  it  is 
said  there,  he  that  is  a  governour  is  bound  lor  the  offence 
of  his  officers  ;  and  that  the  same  is  to  be  liolden  of  a  cap- 
tain, that  he  shall  be  bound  lor  the  offence  of  his  6quires, 
and  an  host  for  his  guest,  and  such  other.  Nevertheless  it 
is  said  there,  that  certain  doctors,  there  rehearsed,  said 
thereto,  that  if  the  office  be  an  open  or  publick  office,  as  an 
office  of  power,  or  other  like,  it  sufficeth  to  bring  forth  him 
that  offended  :  but  it  is  otherwise  if  it  be  not  a  publick  office, 
but  an  host  or  a  taverner,  or  other  like.  But  if  the  house- 
hold offend  not  in  the  office,  the  lord  is  not  bound  as  to  the 
law,  but  in  conscience  he  is  bound  if  he  were  in  default  by 
not  correcting  them  ;  for  he  is  bound  to  correct  them  both 
by  word  and  example,  and  if  he  find  any  incorrigible,  he 
is  bound  to  put  him  away,  except  that  he  hath  presump- 
tions, that  if  he  do  so,  he  will  be  the  worse,  and  then  he  may 
do  that  he  thinketh  best,  and  he  is  excused,  and  else  not; 
lor  to  such  persons  it  is  said  Error  qui non  resistitur  ap- 
probatur,  that  is  to  say,  an  error  that  is  not  resisted  is  ap- 
proved. And  though  divers  of  the  sayings  before  rehearsed 
agree  with  the  law  of  the  realm,  yet  all  do  not  so;  and  also 
they  that  do  are  to  be  observed  by  authority  of  the  law  of 
the  realm,  and  not  by  the  authority  alleged  in  the  said 
paragraph.  And  therefore  I  intend  to  treat  somewhat 
where  the  master  shall  be  charged  by  his  servant  or  deputy, 
or  by  them  that  be  under  him  in  any  office,  and  where  not; 
and  then  I  intend  to  touch  some  other  things,  where  the 
master  after  the  laws  of  the  realm  shall  be  charged  bv  the 
act  of  his  servant  in  other  cases  not  concerning  offices,  and 
\\  here  not. 

Firsts  If  a  man  be  committed  to  ward  upon  arrearages 
of  accompt,  and  the  keeper  of  the  prison  suffereth  him 
to  140  at  large,  then  an  action  of  debt  shall  lie  against  him. 
And  if  he  be  not  sufficient,  then  it  lieth  against  him  that 
committed  the  keeping  of  the   prison  unto   him  :f   and  that 

Post.  J70. 
f  2  ln>t.    382;   Cow.  Rep    405. 


230  Doctor   and  Student. 

is  by  reason  of  the  statute  of  Westminister  2,  cap.  it. 
Also  if  bailiffs  of  franchises  that  have  return  of  writs  make 
a  false  return,  the  party  shall  have  averment  against  it,  as 
well  of  too  little  issues  as  of  other  things,  as  well  as  he  shall 
have  against  the  sheriff;  but  all  the  punishment  shall  be 
only  upon  the  bailiff,  and  not  upon  the  lord  of  the  franchise  : 
and  that  doth  appear  by  the  statute  made  in  the  first  year 
of  Edw.  III.,  the  fifth  chapter.*  But  if  an  under-sheriff 
make  a  return  whereupon  the  sheriff  shall  be  amerced,  there 
the  high-sheriff  shall  be  amerced,  for  the  return  is  made 
expressly  in  his  name.f  But  if  it  be  a  false  return  where- 
upon an  action  of  disceit  lieth,  in  that  case  it  may  be 
brought  against  the  under-sheriff.  And  see  thereof  the 
statute  that  is  called  statutum  de  male  rctumantibus  brcvia. 

Also,  if  the  king's  butler  make  deputies,  he  shall  answer 
for  his  deputies  as  for  himself; J  as  appeareth  in  the  statute 
made  in  the  twenty-first  year  of  king  Edw.  III.  Dc  -firodi- 
tionibus,  the  twenty-first  chapter. 

Also  in  the  statute  that  is  called  statutum  scaccarii.  it  is 
enacted,  among  other  things,  That  no  officer  of  the  ex- 
chequer shall  put  any  clerk  under  him,  but  such  as  he  will 
answer  for.  And  forasmuch  as  the  statute  is  general,  it 
seemeth  that  he  shall  answer  as  well  for  an  untruth  in  any 
such  clerk  as  for  an  oversight. § 

Also  in  the  fourteenth  year  of  king  Edw.  III.,  c.  9,  it  is 
enacted,  That  all  gaols  shall  be  adjoined  again  to  the 
shires,  and  that  the  sheriff  shall  have  the  keeping  of  them, 
and  that  the  sheriff  shall  make  such  under-gardeins  for  the 
which  they  will  answer.  ||  And  nevertheless  I  suppose 
that  if  there  be  an  escape  by  default  of  the  gaoler,  that  the 
king  may  charge  the  gaoler,  if  he  will. I'     But  it  is  no  doubt 

Dal  ton's  Sheriff,  462,  177;   27  II.  8,  c  24,  s.  9;  Viner's  Abr.,  title  Re- 
turn, 191. 

f3  Unls.  78;    1  Buls.  73;  Dalt.  Sher.  456. 

X  Obsolete. 

§Slat.  51    H.  3,  stat.  55  4  Inst.  107. 

||  Vent.  401  ;   Skinn.  41. 

H  2  II.  P.  C.  135,  c  19. 


Dialogue   II. — Chap.  42.  231 

but  he  may  charge  the  sheriff,  by  reason  of  this  statute,  if 
he  will.  lint  if  it  be  a  wilful  escape  in  the  gaoler,  which 
is  felon}'  in  him,  the  sheriff  shall  not  be  bound  to  answer  to 
the  felony,  ne  none  other  but  the  gaoler  himself,  and  they 
that  ass  :nted  to  him.* 

Also,  if  a  man  have  a  sheriffwick,  constableship,  or 
bailiwick  in  fee,  whereby  he  hath  the  keeping  of  prisoners, 
if  he  let  any  to  replevin  that  be  not  replevishable,  and 
thereof  be  attaint,  he  shall  leese  the  office,  etc.f  And  if  it 
be  an  under-sheriff,  constable,  or  bailiff,  that  hath  the 
keeping  of  the;  prison,  that  doth  it  without  knowledge  of  the 
lord,  he  shall  have  imprisonment  by  three  years,  and  after 
shall  be  ransomed  at  the  king's  will  ;  as  appeareth  in  the 
statute  of  West.  1,  the  15th  chapter.  And  so  it  appeareth, 
that  in  this  case,  he  that  is  lord  of  the  prison  is  not  bound 
to  answer  for  the  offence  of  them  that  have  the  rule  of  the 
prison  under  him,  but  that  they  shall  have  the  punishment 
themselves  for  their  misdemeanor.  Also  there  is  a  statute 
made  in  the  27th  year  of  king  Edw.  III.,  the  19th  chapter, 
that  is  called  the  statute  of  the  staple,  whereby  it  is  ordained, 
That  no  merchant,  ne  none  other  man,  shall  not  leese  their 
goods  for  the  trespass,  or  forfeit  of  their  servants  ;  unless 
it  be  by  commandment  of  his  master,  or  that  he  offend  in 
the  office  that  his  master  hath  put  him  in,  or  else  that  the 
master  shall  be  bound  to  answer  for  the  deed  of  his  servant 
by  the  law-merchant,  as  in  some  places  it  is  used. 

Also  it  is  enacted  in  the  14th  year  of  king  Edw.  III.,  the 
10th  chapter,  That  wapentakers  and  hundreds  that  be 
sev«  red  from  the  counties  shall  be  adjoined  again  unto  them, 
and  that  if  the  sheriff  hold  them  in  his  own  hands,  that  he 
shall  put  in  them  such  bailiffs  that  have  land  ent, 

and  those  for  which  he  will  answer  :i  and  that  ii  he  lei 
them  to  term,  that  they  be  let  to  the  ancient  term  :  but  after 
it  is  prohibited  by  the  statute  of  the  23d  year  o\   king  Hen. 

*  2  Haw.  P.  C.  134;   Salk.  2~: ;   2  Inst.  592 j   post  234. 
t -•  Inst.  190,  191;  1  Comyn's  Digest,  473  - 

J  3  Inst.  92  ;  4  Co.  34;   Stat.  19  II.  7,  c  10. 


i^i  Doctor  and   Student. 

VI.,  the  ioth  chapter,  that  no  sheriff  shall  let  his  bailiwicks 
nor  wapentakes  to  ferm.  And  when  they  be  once  in  the 
sheriff's  own  hands,  and  the  sheriff  put  in  bailiffs,  they  be 
but  as  under-bailiffs  to  the  king,  and  the  sheriff  the  high- 
bailiff,  and  they  in  manner  the  sheriff's  servants,  and  put 
in  only  bv  him  ;  and  therefore  by  the  said  statute  of  king 
Edw.  III.  he  shall  answer  for  them,  if  they  offend  in  their 
office.  But  if  the  sheriff  let  them  to  ferm,  then  though  die 
sheriff  offend  the  statute  in  that  doing,  yet  whether  he  shall 
be  charged  for  their  misdemeanor  in  the  office  or  not,  is  a 
great  doubt  to  some  men  ;  for  they  say  that  this  statute  is 
only  to  be  understood  where  the  bailiwicks  be  in  the  sheriff's 
hands,  but  here  they  be  not  so,  ne  the  bailiffs  be  not  his 
servants,  but  his  fermers  ;  and  therefore  they  say,  that  if 
the  sheriff  shall  be  charged  for  them,  it  is  by  the  Common 
law,  and  not  by  the  statute  aforesaid.  Also  in  the  second 
year  of  king  Henry  VI.,  the  ioth  chapter,  it  is  enacted,  That 
officers  by  patent  in  every  court  of  the  king,  that  by  virtue 
of  their  office  have  power  to  make  clerks  in  the  said  courts, 
shall  be  charged  and  sworn  to  make  such  clerks  under  them 
for  whom  they  will  answer.*  Also  the  hospitallers  and  tem- 
plars be  prohibit  they  shall  hold  no  plea  that  belongs  to  the 
king's  courts,  upon  pain  to  yield  damages  to  the  party 
grieved,  and  to  make  ransom  to  the  king  :  that  the  superiors 
shall  answer  for  their  obediencers,  as  for  their  own  deed. 
West.  2,  c.  43. |  Also  the  Serjeant  of  the  cater)-  shall  satisfy 
all  the  debs,  damages,  and  executions  that  shall  be  recov- 
ered against  any  that  is  purveyor  or  achator  under  him,  that 
offend  against  the  statute  of  36th  of  Edw.  III.,  or  against 
the  statute  of  24th  of  lien.  VI.,  in  case  the  purveyor  or 
achator  be  not  sufficient,  etc.  And  the  parly  plaintiff  shall 
have  a  Scire  facias  against  the  said  serjeant  in  this  case  to 
have  execution,  as  appeareth  in  the  24th  year  of  king 
Henry  VI.,  the  first  chapter.! 

*4  Inst    1 14,  1 15. 

T2  Inst.  465,  466;   see  stat.  32  II.  S,  c.  24. 

\  Repealed  by  stat.  12  Car.  2,  c.  24,  and  vide  13  and  14  Car.  2,  cap.  20. 


Dialogue   II. — Chap.  42.  233 


Also,  if  a  man  be  sent  to  prison  upon  a  statute-merchant 
by  the  mayor  before  whom  the  recognizance  was  taken,  and 
the  gaoler  will  not  receive  him,  he  shall  answer  for  the  debt, 
ii"  he  have  wherewith;  and  if  not,  then  he  shall  answer 
that  committed  the  gaol  to  him,  as  appeareth  in  the  statute 
called  the  Statute-tner chant.* 

And  il  outragious  toll  be  taken  in  the  town-merchant, f 
if  it  be  the  king's  town  let  to  farm,  the  king  shall  lake  the 
franchise  of  the  market  into  his  hands  ;i  and  if  it  be  done 
by  the  lord  of  the  town  the  king  shall  do  in  like  wise  :  and 
ii  it  be  done  by  the  bailiff,  unknowing  to  the  lord,  he  shall 
yield  again  as  much  as  he  hath  taken,  and  shall  have  im- 
prisonment of  forty  days.  And  so  it  appeareth  that  the 
lord  in  this  case  shall  not  answer  for  his  bailiff.  West.  1, 
c.  3.  And  in  all  the  cases  before  rehearsed,  where  the  su- 
perior is  charged  by  the  default  of  him  that  is  under  him, 
he  in  whose  default  his  superior  is  so  charged,  is  bound  in 
conscience  to  restore  him  that  is  so  charged  through  his  de- 
fault: except  the  case  before  rehearsed  of  the  hospitallers, 
for  all  that  the  obediencer  hath  is  the  superior's  if  he  will 
take  it.§  And  therefore  what  recompence  shall  be  made  by 
the  obediencer  in  that  case,  is  at  the  will  of  the  superior. 
And  now  I  intend  to  show  thee  some  particular  cases,  where 
the  master  alter  the  laws  of  the  realm  shall  be  charged  by 
the  act  of  his  servant,  bailiff,  or  deputy,  and  where  not; 
and  so  for  to  make  an  end  of  this  chapter. 

First,  For  trespass  of  battery,  or  wrongful  entry  into 
lands  or  tenements,  ne  yet  lor  felony  or  murther,  the  mas- 
ter .shall  not  be  charged  lor  his  servant,  unless  he  did  it  by 
his  commandment.  || 

Also,  if  a  servant  borrow  money  in  his  master's  name,  the 
master  ehall  not  be  charged  with  it  unless  it  come  to  his  use, 

*  13  I'd.  1,  slat.  .5. 

1 2  Inst.  219,  220. 

i  That  is,  till  it  be  red  seined  by  the  owner.     :  Tn^t.  221.     For  the  market 
is  n   t  absolutely  forfeited,  but  only  the  toll.     Pal  S:. 
§  Ante,  231. 

||  2  Roll.  Rep.  :;;   .-  Mod.  244;   1  B.C.  450. 


234  Doctor  and  Student. 

and  that  by  his  assent.  And  the  same  law  is,  if  a  servant 
make  a  contract  in  his  master's  name,  the  contract  shall  not 
bind  his  master,  unless  it  were  by  his  master's  command- 
ment, or  that  it  came  to  the  master's  use  by  his  assent.* 
But  if  a  man  sends  his  servant  to  a  fair  or  market  to  buy 
for  him  certain  things,  though  he  command  him  not  to  buy 
them  of  no  man  in  certain,  and  the  servant  doth  according, 
the  master  shall  be  charged  :  but  if  the  servant  in  that  case 
buy  them  in  his  own  name,  not  speaking  of  his  master,  the 
master  shall  not  be  charged,  unless  the  things  bought  come 
to  his  use. 

Also,  if  a  man  send  his  servant  to  the  market  with  a  thing 
which  he  knoweth  to  be  defective,  to  be  sold  to  a  certain 
man,  and  he  selleth  it  to  him,  there  an  action  lieth  against 
the  master  :|  but  if  the  master  biddeth  him  not  to  sell  it  to 
any  person  in  certain,  but  generally  to  whom  he  can,  and 
he  selleth  it  according,  there  lieth  no  action  of  deceit  against 
the  master.! 

Also,  if  the  servant  keep  the  master's  fire  negligently, 
whereby  his  master's  house  is  burnt, §  and  his  neighbour's 
also,  there  an  action  lieth  against  the  master.  ||  But  if  the 
servant  bear  lire  negligently  in  the  street,  and  thereby  the 
house  of  another  is  burned,  there  lieth  no  action  against  the 
master. f[ 

Also,  if  a  man  desire  to  lodge  with  one  that  is  no  common 
hostler,  and  one  that  is  servant  to  him  that  he  lodgeth  with 
robheth   his  chamber,  his   master  shall   not  be  charged  for 

*  Bridgeman's  Ren.  1:8 

1  i  Roll.  Abr.  95;  Poph.  143. 

J  Bridgeman's  Rep.  i:8. 

§  Nov's  Maxims,  c    44;    1  13.  C.  4.31. 

||  The  law  is  now  altered  in  this  respect  by  stat.  6  Ann,  c^S,  sec.  3, 
which  enacts  that  no  action  shall  be  maintained  against  any  in  whose  house 
or  chamber  a  lire  shall  accidentally  begin  ;  but  if  such  (ire  happens  through 
negligence  of  any  servant,  such  servant  shall  forfeit  100/,  or  in  default  of 
payment,  be  sent  to  the  house  of  correction  for  eighteen  months,  to  be 
kept  to  hard  labour. 

Tf  1  Black.  Com.  419. 


Dialogue   II. — Chap.  42.  13$ 

the  robbing  ;  but  if  he  had  been  a  common  hostler  he  should 
have  been  charged. 

Also,  if  a  man  be  gardein  of  a  prison  wherein  is  a  man 
that  is  condemned  in  a  certain  sum  of  money  ',*  and  another 
that  is  in  prison  for  felony,  and  a  servant  of  the  gardein 
that  hath  the  rule  of  the  prison  under  him,  wilfully  letteth 
them  both  escape  ;  in  this  case  the  gardein  shall  answer  for 
the  debt,  and  shall  pay  a  fine  for  the  escape  of  the  other,  as 
for  a  negligent  escape,  and  the  servant  only  shall  be  put  to 
answer  to  the  felony  for  the  wilful  escape. f 

Also,  if  a  man  make  another  his  general  receiver,  and 
that  receiver  receivelh  money  of  a  creditor  of  his  master, 
and  maketh  him  acquittance,  and  after  payeth  not  his 
master;  yet  that  payment  dischargeth  the  creditor  :J  but  if 
the  creditor  hath  taken  an  acquittance  of  him  without  pay- 
ing him  his  money,  that  acquittance  only  were  no  bar  to  the 
master,  unless  he  made  him  receiver  by  writing,  and  gave 
him  authority  to  make  acquittances,  and  then  the  authority 
must  be  shewed.  And  if  the  creditor  in  such  case,  by 
agreement  between  the  receiver  and  him,  deliver  to  the  re- 
ceiver  an  horse,  or  another  thing  in  recompence  of  the  debt, 
that  delivery  dischargeth  not  the  creditor,  unless  it  be  de- 
livered over  unto  the  master,  and  he  agree  to  it.§  For  the 
receiver  hath  no  such  power  to  make  no  such  commutation, 
but  his  master  give  him  special  commandment  thereto. 

Also,  if  a  servant  shew  a  creditor  of  his  master,  that  his 
master  sent  him  tor  his  money,  and  he  payeth  it  unto  him  ; 
that  payment  dischargeth  him  not,  it  the  master  did  not 
send  him  for  it  indeed,  except  that  it  came  alter  unto  the 
use  of  the  master  by  his  assent. 

Also,  if  a  man  make  a  bailiff  o[  a  manor,  and  after  the 
lord  of  whom  the  manor  is  holden  grunt  the  seigniors-  to 
another,  and  the  bailiff  after  payeth  the  rent  to  the  grantee  : 
that    payment    of   the    rent    countervaileth    no    attornment 

*  Noy's  Max   43. 

t  Ante,  230. 

J  Cases  in  Law  and  Equity,  no. 

§  2  Salk.  442;    II  Mod.  71. 


236  Doctor  and  Student. 

though  it  were  by  fine,  ne  shall  not  bind  his  master,  till  he 
attorn  himself:  but  if  the  lord  of  whom  the  land  is  holden 
dies  seised  of  the  seigniory,  and  the  bailiff  payeth  the  rent 
to  the  heir  of  the  lord,  that  is  a  good  seisin  to  the  heir, 
though  the  bailiff  had  no  commandment  of  his  master  to 
pay  it :  lor  it  belongeth  to  his  office  to  pay  rent-service,  but 
not  rent-charge,  as  some  men  say-* 

Also  an  encroachment  by  the  bailiff  shall  not  bind  the 
master  in  avowry,  if  he  had  no  commandment  of  the  master 
to  pay  it.  Also,  if  there  be  lord,  mesne  and  tenant,  and 
the  tenant  holdeth  of  the  mesne  as  of  his  manor  of  D.,  the 
mesne  maketh  a  bailiff,  and  after  the  tenant  makelh  a  feoff- 
ment, the  feoffee  tendeth  notice  to  the  bailiff,  and  he  ac- 
cepted! is  rent  with  arrearages  ;|  this  notice  shall  not  bind 
the  lord,  ne  compel  him  to  alter  his  avowry  :  for  the  office 
of  a  bailiff  stretcheth  not  thereto,  but  he  must  have  therein 
a  special  commandment  of  his  master.  Also,  if  a  servant 
ride  upon  his  master's  horse  to  do  an  errand  for  his  master, 
into  a  town  that  hath  authority  to  make  attachments  of 
goods  upon  plaints  of  debt,  etc.,  and  there,  upon  a  plaint 
of  debt  made  against  the  servant,  the  master's  horse  is  at- 
tached by  the  officers,  thinking  that  the  horse  were  his  own, 
and,  because  the  servant  appeareth  not,  the  officers  seise 
the  horse  as  forfeit ;  in  this  case  the  lord  shall  have  an  action 
of  trespass  against  the  officers,  and  this  attachment  for  the 
dubt  of  his  servant  shall  not  bind  him,  etc.  But  that  an 
host  or  keeper  of  a  tavern  shall  be  charged  lor  their  guests, 
unless  it  be  done  by  their  assent  and  commandment,  I  do 
not  remember  that  I  have  read  it  in  the  laws  of  England. 

Chap.  XL1II. —  Whether  a  villain  or  a  bondman  may  give 
a w ay  h is  goo ds . 

Doct.  It  appeareth  in  the  said  sum  called  summa  angelica, 
in  the  title  donatio  prima,  the  9th  paragraph,  that  a  bond- 
man, or  a  religious  man,  a  monk,  ne  such  other  that  hath 

*  1  Roll.  Abr.  125. 

f  1  Danv.  Abr.  6S6;   12  Mod.  354. 


Dialogue   II. — Chap.  43.  237 

nothing  in  proper,  may  not  give,  but  it  be  by  licence  of  their 
superior  :*  but  that  saying  is  not,  as  it  is  said  there,  to  be 
understood  of  religious  persons  that  have  lawful  ministra- 
tion ol  goods  ;  for  if  they  give  with  a  cause  reasonable,  it 
is  good,  but  without  cause  they  may  not. 

Also,  if  they  by  the  licence  of  the  prelate,  with  the  coun- 
sel of  the  more  part  of  the  covent,  abide  at  school  or  go  on 
pilgrimage,  they  may  give  as  other  honest  scholars  and  pil- 
grims be  reasonably  wont  to  do  ;  and  they  may  also  give 
alms  where  there  is  great  need,  if  they  have  no  time  to  ask 
licence. 

Also,  if  they  see  one  in  extreme  necessity,  they  may  give 
alms  though  their  superiors  prohibit  them,  for  then  all 
things  be  in  common  by  the  law  of  God.f  And  therefore 
they  be  bound  for  to  do  it,  as  appeareth  in  the  aforesaid  sum 
called  summit  angelica,  in  the  title  Elccmosyna,  the  6th 
paragraph,  Doth  not  the  law  of  England  agree  with  these 
diversities  ? 

Stud.  Forasmuch  as  the  question  is  only  made,  Whether 
a  villain  or  bondman  may  give  away  his  goods  or  not? 
And  it  seemeth  that  after  the  aforesaid  sum  in  the  title 
which  thou  hast  before  rehearsed,  that  he,  ne  none  other 
that  hath  no  property,  may  not  give;  whereby  it  appeareth 
that  the  said  sum  taketh  it,  that  a  bondman  should  have  no 
property  in  his  goods,  and  that  therefore  his  gift  should  be 
void  :  I  shall  somewhat  touch  what  property  and  what  au- 
thority a  villain  hath  in  his  goods  after  the  law  of  the  realm, 
and  what  authority  the  lord  hath  over  them.  And  I  will 
leave  the  diversities  that  thou  hast  remembered  before  of 
religious  persons  to  them  that  list  to  treat  farther  therein 
hereafter. 

First,  If  a  villain  have  goods,  either  by  his  own  proper 
buying  and  selling,  or  otherwise  by  the  gift  of  other  men, 
he  hath  as  perfect  a  property. %  and  also  as  whole  interest 


*  Ante,  32,  208- 

1  Ante,  16. 

%  Litt.,  sec.  177;  Perk.,  sec  29. 


238  Doctor  and  Student. 

in  them,  and  may  as  lawfull)r  give  them  away,  as  any  free- 
man maj-.  But  if  the  lord  seise  them  before  his  gift,  then 
they  be  the  lord's,  and  the  interest  of  the  villain  the  reinis 
determined.* 

Also,  if  the  lord  seise  part  of  the  goods  of  his  villain  in 
the  name  of  all  the  aoodsthat  the  villain  hath  or  shall  here- 
after  have,  that  seisure  is  good  for  all  the  goods  that  he  had 
at  the  time  of  the  seisure. f  But  if  goods  come  to  the  vil- 
lain after  the  seisure,  he  may  lawfully  give  them  away,  not- 
withstanding the  said  seisure. | 

Also,  if  the  lord  claim  all  the  goods  of  the  villain,  and 
seiseth  part  of  them  :  that  seisure  is  void,  and  the  gift  of  the 
villain  is  good,  notwithstanding  the  seisure. 

Also,  if  a  man  be  bound  to  a  villain  in  an  obligation  in  a 
certain  sum  of  money,  and  the  lord  seiseth  the  obligation  ; 
then  the  obligation  is  his,  but  yet  he  can  take  no  action 
thereupon,  but  in  the  name  of  the  villain  ;§  and  therefore 
if  the  villain  release  the  debt,  the  lord  is  barred  by  that  re- 
lease. 

Also,  if  a  woman  be  a  nief,  and  she  marrieth  a  freeman, 
the  goods  immediately  by  the  marriage  be  the  husband's, 
and  the  lord  shall  come  too  late  to  make  any  seisure. || 
And  if  the  husband  in  that  case  maketh  his  wife  his  ex- 
ecutrix, and  dieth,  and  the  wife  taketh  the  same  goods  again 
as  executrix  to  her  husband  ;^[  yet  it  shall  not  be  lawful  for 
the  lord  to  take  them  from  her,  though  she  be  a  nief,  as  she 
was  before  the  marriage. 

Also,  if  goods  be  given  to  a  man  to  the  use  of  a  villain, 
and  the  lord  seiseth  those  goods,  the  seisure,  after  some 
men,  is  good  by  the  statute  made  in  the  19th  year  of  king 
Hen.  VII.,**  wherebv  it  is  enacted,  That  the  lord  shall  enter 


*  Ante,  29,  154. 

fCo.  Litt.  118. 

Jib. 

§  Co.  Litt.  117. 

||  Litt.,  sec.  202. 

t  Co.  Litt.  118. 

•♦The  statute  of  Hen.  is  now  repealed. 


Dialogue   II. — Chap.  43.  239 

into  lands  whereof  other  persons  be  seised  to  the  use  of  his 
villain  ;  and  they  say  that  the  same  statute  shall  be  under- 
stood by  equity  of  goods  in  use,  as  well  as  of  lands  in  use. 

Also,  if  a  villain  be  made  a  priest,  yet  nevertheless  the 
lord  may  seise  his  goods  and  lands,  as  he  might  do  before; 
.and  until  the  seisure,  he  may  alien  them,  and  give  them  away, 
and  as  he  might  before  he  was  a  priest.  And  in  this  case 
the  lord  may  order  him,  so  that  he  shall  do  him  such  ser- 
vice as  belongeth  to  a  priest  to  do  before  any  other  ;  but  he 
may  not  put  him  to  no  labour,  nor  other  business  but  that  is 
honest  and  lawful  for  a  priest  to  do. 

Also,  if  a  villain  enter  into  religion,  in  his  year  of  proof 
he  may  dispose  his  goods  as  he  might  have  done  before  he 
took  the  habit  upon  him.* 

Also,  in  like  wise  the  lord  may  seise  his  goods  as  "he 
might  have  done  before  :f  but  if  he  after  make  executors, 
and  be  professed,  and  the  executors  take  the  goods  to  the 
performance  of  the  will  ;  then  the  lord  may  not  seise  the 
goods  though  the  executors  have  them  to  the  performance 
of  the  will  of  him  that  is  his  villain  ;  nor  in  that  case  the 
lord  may  not  seise  his  body,  ne  put  him  to  no  manner  of 
labour,  but  must  suffer  him  to  abide  in  his  religion  under 
the  obedience  of  his  superior,  as  other  religious  persons  do 
that  be  not  bondmen.  And  the  lord  hath  no  remedy  in  that 
case  for  the  loss  of  his  bondman,  but  only  to  take  an  action 
of  trepass  airainst  him  that  received  him  into  religion  with- 
out  his  license,  and  thereupon  to  recover  damages  as  shall 
be  assessed  by  twelve  men.:}:  Many  other  cases  there  be 
concerning  the  gift  of  the  goods  of  a  villain,  whereof  I 
shall  speak  no  more  at  this  time;  for  this  that  I  have  said 
suffjeeth  to  shew,  that  the  knowledge  of  the  king's  law  is 
right  expedient  to  the  good  order  of  conscience  concerning 
such  goods. 

•  Litt.,  sec.  202. 

tCo.  Litt.  11S;  Br.  Villeinage,  pi.  14,  73. 

J  Ante,  155. 


240  Doctor   and  Student. 


Chap.  XLIV. — If  a  clerk  be  ■promoted  to  the  title  of  his 

patrimony,  and  after  selleth  his  patrimony,  and  after 
falletk  to  poverty,  whether  shall  he  have  his  title  therein 
or  not? 

In  the  said  sum  called  rosella,  in  the  title  Clcricus 
quartus,  the  24th  article,  it  is  asked,  If  a  clerk  be  pro- 
moted to  the  title  of  his  patrimony,  whether  he  may  alien 
it  at  his  pleasure  ;*  and  whether  in  that  alienation  the 
solemnity  needeth  to  be  kept,  that  is  to  be  kept  in  alienations 
of  things  of  the  church?  And  it  is  answered  there,  that  it 
may  not  be  aliened  no  more  than  the  goods  of  a  spiritual 
benefice,  if  it  be  accepted  for  a  title,  and  expressly  assigned 
unto  him,  so  that  it  should  go  as  into  a  thing  of  the  church, 
except  he  have  after  another  benefice  whereof  he  may  live. 
But  if  it  be  secretly  assigned  to  his  title,  some  agree  it  may 
be  aliened.  And  in  this  case,  by  the  laws  of  the  realm,  it 
may  be  lawfully  aliened,  whether  it  be  secretly  or  openly 
assigned  to  the  title  ;  for  the  ordinary,  tie  yet  the  party  him- 
self, after  the  old  custom  of  the  realm,  have  no  authority  to 
bind  any  inheritance  by  authority  of  the  spiritual  law  ;  and 
therefore  the  land,  after  it  is  assigned  and  accepted  to  be 
his  title,  standeth  in  the  self-same  case  to  be  bought,  sold, 
charged,  or  put  in  execution,  as  it  did  before.  And  there- 
fore it  is  somewhat  to  be  marvelled,  that  ordinaries  will 
admit  such  land  for  a  title,  to  the  intent  that  he  that  is  pro- 
moted should  not  fall  into  extreme  poverty,  or  go  openly  a 
be<£<nn<j[,  without  knowing  how  the  Common  law  will  serve 
therein  :  for  of  mere  right  all  inheritances  within  this  realm 
ought  to  be  ordered  by  the  king's  laws,  and  inheritance 
cannot  be  bound  in  this  realm  but  by  line,  or  some  other 
matter  of  record,  or  by  feoffment,  or  such  other,  or,  at  least 
by  a  bargain  that  changeth  an  use.f  And  over  that  to 
assign  a   state  for  term  of  life  to  him  that  hath  a  fee-simple 

*  Cowel's  Inter.,  title  Patrimony;  Statutes  i  Eliz.,c  12;   13  Eliz.,  c.  10; 
32  H.  8,  c  2S;   14  Eliz.,  c.  11  ;   ante,  22 !   J3  Eliz.,  c.  11  ;  43  Eliz.  29. 
t  Ante,  23. 


Dialogue   II. — Chap.  44.  241 

before,  is  void  in  the  laws  of  England,  without  it  be  by 
such  a  matter  that  it  work  by  way  of  conclusion  or  estop- 
pel :*  and  in  this  case  is  no  such  matter  of  conclusion  ;  and 
therefore  all  that  is  done  in  such  case  in  assigning  of  the 
said  title  is  void.  Also  there  is  no  interest  that  a  man  hath 
in  any  manor,  lands  or  tenements  for  term  of  life,  for  term 
of  years,  or  otherwise,  but  that  he  by  the  law  of  the  realm 
mav  put  away  his  right  therein  if  he  will.  And  then  when 
this  man  alieneth  his  land  generally,  it  were  against  the 
law  ol  the  realm  that  any  interest  of  such  a  title  should  re- 
main in  him  against  his  own  sale  :  and  there  is  no  diversity, 
whether  the  assignment  of  the  title  were  open  or  secret,  and 
so  the  title  is  void  to  all  intents.  And  in  like  wise,  if  a 
house  of  religion,  or  any  other  spiritual  man  that  hath 
granted  a  title  after  the  custom  used  in  such  titles,  sell  all 
the  lands  and  goods  that  they  have,  that  sale  in  the  laws  of 
England  is  good  as  against  the  title,  and  the  buyer  shall 
never  be  put  to  answer  to  the  title. f  Also  some  say,  that 
upon  the  common  titles  that  be  made  daily  in  such  case, 
that  if  lie  fall  to  poverty  that  hath  the  title,  he  is  without 
remedy  ;  for  they  be  so  made,  that  at  the  Common  law 
there  is  no  remedy  for  them  ;  and  if  he  take  a  suit  in  the 
spiritual  court,  many  men  say  that  a  Prohibition  or  a  Prce- 
munire  lieth.  And  therefore  it  were  good  for  ordinaries  in 
such  case  to  counsel  with  them  that  be  learned  in  the  law 
of  the  realm,  to  have  such  a  form  devised  for  making  of 
such  titles,  that  if  need  be,  would  serve  them  that  they  be 
made  unto  ;  or  else  let  them  be  promoted  without  any  title, 
and  to  trust  in  God,  that  if  they  serve  him  as  they  ought  to 
do,  he  will  provide  for  them  to  have  sufficient  for  them  to 
live  upon.  And  besides  these  cases  that  I  have  remembered 
before,  there  be  many  other  cases  put  in  the  said  sums  for 
well-ordering  of  conscience,  that,  as  methinketh,  are  not  to 
be  observed  in  this  realm,  neither  in  law  nor  conscience. 

*  2  B.  C.  295. 
f  Ante,  20S. 
16 


i^i  Doctor  and  Student. 

Doct.  Dost  thou  then  think  that  there  was  default  in 
them  that  drew  the  said  sums,  and  put  therein  such  cases, 
and  such  solutions,  that  as  thou  thinkest,  hurt  conscience, 
rather  than  to  give  any  light  to  it,  specially  in   this  realm? 

Stud.  I  think  no  default  in  them,  but  I  think  that  they 
were  right  well  and  charitably  occupied,  to  take  so  great 
pain  and  labour  as  they  did  therein,  for  the  wealth  of  the 
people,  and  clearing  of  their  conscience  ;  for  they  have 
thereby  given  a  right  great  light  in  conscience  to  all 
countries  where  the  law  civil  and  the  law  canon  be  used  to 
temporal  things.  But  as  for  the  laws  of  this  realm  they 
know  them  not,  ne  they  were  not  bound  to  know  them  : 
and  if  they  had  known  them,  it  would  little  have  holpen 
them  for  the  countries  that  they  most  specially  made  their 
treatises  for.  And  in  this  country  also  they  be  right  nec- 
essary and  much  profitable  to  all  men,  for  such  doubts  as 
rise  in  conscience  in  divers  other  manners  not  concerning 
the  laws  of  the  realm.  And  I  marvel  greatly,  that  none 
of  them  that  in  this  realm  are  most  bounden  to  do  that  in 
them  is  to  keep  the  people  in  a  right  judgment,  and  in  a 
clearness  of  conscience,  have  done  no  more  in  time  passed 
to  have  the  law  of  the  realm  known  than  they  have  done  : 
for  though  ignorance  may  sometimes  excuse,  yet  the  knowl- 
edge of  the  truth,  and  the  true  judgment,  is  much  better:* 
and  sometime  though  ignorance  excuseth  in  part,  it  excuseth 
not  in  all  ;  and  therefore  methinketh  they  did  very  well  if 
they  would  yet  be  callers  on  to  have  that  point  reformed  as 
shortly  as  they  could.  And  now  because  thou  hast  now 
satisfied  my  mind  in  many  of  these  questions  that  I  have 
made,  1  purpose  for  this  time  to  make  an  cnCi. 

Doct.  1  pray  thee  yet  shew  me,  or  that  thou  make  an 
end,  more  of  these  cases,  that  after  thine  opinion  be  set  in 
divers  books  of  learning  of  conscience,  that,  as  thou 
thinkest,  for  lack  of  knowledge  of  the  law  of  the  realm,  do 
rather  blind  conscience,  than  give  a  light  unto  it :  for  if 
it  be  so,  then  surely,  as  thou  hast  said,  it  would  be  reformed. 

*  Post.  248. 


Dialogue  II. — Chap.  45.  24.3 

For  I  think  verily,  the  laws  of  the  realm  in  many  cases 
must  in  this  realm  he  observed  as  well  in  conscience,  as  in 
the  judicial  courts  of  the  realm. 

Stud.  I  will  with  good-will  shew  to  thee  shortly  some 
other  questions  that  be  made  in  the  said  sum,  to  give  thee 
another  occasion  to  see  therein  the  opinions  of  the  said 
sums,  and  to  see  farther  thereupon  how  the  opinions  and 
the  laws  of  the  realm  do  agree  together.  And  yet  besides 
these  questions  that  I  intend  to  shew  unto  thee,  there  be 
many  other  questions  ot  the  said  sums  that  had  as  great 
need  to  be  more  plainly  declared  according  to  the  laws  of 
the  realm,  as  those  that  I  shall  shew  thee  hereafter,  or  as  I 
have  spoken  of  before.  But  to  the  cases  that  I  shall  speak 
of  hereafter  I  will  shew  thee  nothing  of  my  conceit  in  them, 
but  shall  leave  it  to  others  that  will  of  charity  take  some 
farther  pain  hereafter  in  that  behalf. 

Chap.  XLV. — Divers  questions  taken  by  the  student  out 
of  the  sums  called  summa  rosella  and  summa  angelica, 
which  he  thinkcth  necessary  to  be  looked  upon,  and  to  be 
seen  how  they  stand  and   agree  with  the  law  of  the 

realm. 

The  first  question  is  this,  Whether  a  custom  may  break  a 
law  positive?  summa  rosella.  titulo  consuetitdo.  parag.  13.* 

The  second  is.  If  a  man  attainted  or  banished  be  restored 
by  the  prince,  whether  shall  that  restitution  stretch  to  the 
goods?  summa  rosella.  in  the  title  damnalus  in  fri>icifiio.\ 

Item,  It' a  man  that  is  outlawed  of  felony,  ahjured,  or  at- 
tainted of  murder  or  felony,  or  he  that  is  an  aseismus.  may 
be  slain  by  strangers?  And  see  the  like  matter  thereto, 
summa- angelica,  in  the  title  aseismus.  parag.  n. J 

This  question  is  somewhat  answered  to  in  a  new  addi- 
tion, as  appeareth  before  in  the  14th  chapter. 

Item,  Whether  the   master  shall  be  bound  by  the  act  or 

*3  Cro.  347;  Doug.  10^;  ante,  79. 
t  3  Mod.  101. 
J  Ante,  22J. 


244  Doctor  and   Student. 

offence  of  his  servant  or  officer?  summa  angelica,  in  the  title 
do  minus,  parag.  4.* 

This  question  is  answered  to  in  an  addition,  as  appeareth 
before  in  the  14th  chapter. 

Item,  Whether  a  villain  may  give  away  his  goods. 
Summa  angelica,  in  the  title  donatio  prima,  parag.  cj.f 

This  question  is  answered  to  in  an  addition,  as  appeareth 
before  in  the  43rd  chapter. 

Item,  Whether  an  abbot  may  give,  etc.,  summa  angelica, 
in  the  title  donatio  1,  parag.  10  and  ii.J 

Item,  Whether  a  woman-covert  may  give  away  any 
goods?  And  it  is  answered,  summa  angelica,  in  the  title 
donatio  1,  par.  II,  that  she  may  not,  without  she  have 
goods  beside  her  dowry,  but  only  in  alms.§ 

Item,  If  a  man  do  treason,  whether  the  gift  of  goods  after, 
before  attainder,  be  good?  summa  angelica,  in  the  title 
donatio  1,  par.  12.  And  it  seemeth  there  may,  and  look 
summa  angelica,  in  the  title  alicnatio,  par.  24.  || 

Item,  If  a  man  wittingly  make  a  contract  between  two 
kinsfolk,  or  other  that  may  not  lawfully  marry  together, 
whether  he  hath  forfeit  his  goods?  Summa  angelica,  in  the 
title  donatio  1,  par.  14. 

Item,  Whether  the  father  may  give  to  the  son?  summa 
angelica,  in  the  title  donatio  prima,  par.  19,  and  summa 
rosclla,  in  the  title  donatio  2,  par.  42. 

Item,  Whether  a  man  may  give  above  five  hundred 
shillings,  ahsq;  inquisitionc?  Summa  angelica,  in  the  title 
donatio  1  par.  20. 

Item,  Whether  a  gift  shall  be  avoided  by  an  ingratitude? 
Summa  rosclla,  in  the  title  donatio  1,  par.  17  and  29. 
And  there  it  is  said,  that  the  gift  is  void  by  the  law  of 
nature  ;  and  look  summa  angelica,  in  the  title  donatio  prima, 
par.  42  and  45. 

*  Ante,  236. 

t  lb.  ;  Litt,  sec.  177. 

\  Ante,  32. 

§  Swin.  So,  81,  95. 

U  2  Hawk.  P.  C.  454;  Stat.  13  Eliz.,  c  5;  Skin.  357. 


Dialogue   II. — Chap.  45.  245 

Item,  Whether  the  gift  between  the  husband  and  the  wife 
may  be  good  ?  And  it  is  said  yea,  when  the  husband  giveth 
it  causa  rcmunerationis.  Summa  rosclla,  in  the  title  donatio 
1,  par.  32.     2  Ves.  669.* 

Item,  If  a  man  make  a  will,  and  enter  into  religion, f 
whether  he  may  after  revoke  the  will?  And  it  is  said,  that 
friars  minors  may  not,  and  others  may.  Summa  rosclla, 
in  the  title  donatio  1,  par.  35,  injine. 

Item,  If  a  man  give  another  a  town,  with  all  the  rights 
that  he  hath  in  the  same,  whether  the  patronage,  etc.,  and 
the  tithes  pass?  Summa  rosclla,  in  the  title  ccclcsia  1, 
par.  56. 

Item,  Whether  all  that  is  bought  with  the  money  of  the 
church  be  the  church's  ?  Summa  rosella,  in  the  title  ccclcsia 
1,  par.  7,  and  it  seems  to  be  so. 

Item,  If  a  gift  made  to  a  monastery  may  be  avoided  by 
that  the  giver  hath  children  after  the  gilt?  Summa  rosclla, 
in  the  title  donatio  1,  par.  43.+ 

Item,  If  a  man  buy  any  thing  under  the  half  price, 
whether  he  be  bound  by  the  law  to  restore  it?  Summa  ro- 
sella, in  the  title  emptio  ct  venditio,  par.  6.§ 

Item,  Whether  a  common  thief,  vcl  communis  depopu- 
lalor  agrorum  may  abjure?  Summa  rosella,  in  the  title 
emunitas  1,  in  priueipio.  JEt  habetur  ibi  in  fine,  quod  licet 
leges  excipiaut  plures  pe/sonas,  tamen  per  jus  canonicum 
legibus  derogatum  est.\\ 

Item,  Whether  a  man  shall  take  the  church  tor  great  and 
enormous  offences  that  is  not  murther  nor  felony.  Summa 
rosella,  in  the  title  emunitas  2,  par.  3  and  11. IT 

Item,  It"  a  man  take  one  in  the  highway,  anil  draw  him 
out,  and  there  beateth  him,  whether  he  shall  have  the  pun- 

«  o.  Litt.  3,  112;  4  Co.  29;   Bro.  Custom,  56;    1  P.  Wins.  441. 
■j" Since  the  reformation  the  disabilities  attending  entering  into  religion 
are  taken  away.      1  Salk-   162. 

%  2  P>.  C.  502  ;  Gilb.  0:1  Wills,  99. 
§  Wood's  Civil  Law,  231. 
||  Vide  stat.  21  Jac.  1,  c.  28. 
14B.  C.  327. 


246  Doctor  and   Student. 

ishment  that  is  ordained  for  them  that  strike  one  in  the  high- 
way?    Summa  rosclla,  in  the  title  cmunitas  2,  par  6. 

J  lent,  Whether  he  that  taketh  the  church,  may,  after  the 
offence,  be  adjudged  to  death?  Summa  rosclla,  in  the  title 
cmunitas  2,  par.  8.* 

Item,  Whether  the  bishop's  palace  be  sanctuary  ?  Summa 
rosclla,  in  the  title  cmunitas  2,  par.  24. f 

Item,  Whether  the  dignity  of  the  bishop  or  priesthood 
discharge  bondage?  Summa  rosclla,  in  the  title  cj)iscoj)us, 
in  ■principio. 

Item,  Whether  a  clerk  is  bound  to  pay  an}'  impositions 
or  tallages  for  his  patrimony,  or  otherwise?  Summa  ro- 
sclla, in  the  title  excommunicato  1,  divisionc  oct.,  par.  4, 
5,  and  6,  and  divisionc  11011a,  par.  i.\ 

Item,  If  it  were  ordained  by  statute,  that  if  a  man  sell, 
etc.,  he  shall  give  to  the  king  two-pence,  whether  a  clerk 
be  bound  to  give  it,  if  he  sell  of  his  prebend?  Summa  ro- 
sclla, in  the  title  Excommunicatio  1,  divisionc  noua, 
par.  3-§ 

Item,  If  it  be  ordained  by  statute,  that  there  shall  not  be 
laid  upon  a  dead  person  but  such  a  certain  cloth,  or  thus 
many  tapers  or  candles  ;]|  whether  the  statute  be  good? 
And  it  is  left  for  a  question.  Summa  rosclla',  in  the  title 
Excommunicatio  1,  divisionc  18,  par.  8,  in  fine. 

Item,  If  a  man  make  a  lease  of  a  mill  for  term  of  years, 
and  it  is  agreed  that  the  lessee  shall  grind  the  lessor  toll-free 
during  the  term, If  after  the  lessor  is  made  an  earl  or  a  duke, 
and  hath  greater  household  than  before  ;  whether  the  lessee 
be  bound  there,  etc.  ?  Summa  rosclla,  in  the  title  luimilia, 
par.  5. 

Item,  If  a  master  will  not  pay  his  servant's  wages  that 
hath  served   him   faithfully,  whether  that  servant  may  take 

*  4  B.  C  3-^7- 

t  21  Jac  1,  c.  2S. 

t  Dalt.  Just.  254,  cap.  73;  3  Keb.  255. 

§  Post.  307. 

II  lb. 

\  Vin.  Abr.,  title  Trespass,  532. 


Dialogue   II. — Chap.  45.  247 


secretly  as  much  goods  of  his  master,  etc.,  and  if  he  do, 
Whether  he  be  bound  to  restitution?  Summa  rosclla,  in  the 
title  Familia,  par.  6,  it  seems  he  is. 

Item,  It  things  immoveable  of  the  church  may  not  be 
given?*  Summa  rose/la,  in  the  title  Feodum,  par.  1.  And 
see  there  is  ■princi-pio  what  Feodum  is. 

Item,  Whether  the  sons  bastards  and  the  sons  lawfully 
begotten  shall  inherit  together?!  Summa  rosclla,  in  the 
title  Filius,  par.  1. 

Item,  Whether  father  and  mother  may  succeed  to  their 
bastards?^      Summa  rosclla,  in  the  title  Films,  par.  4. 

Item,  Whether  the  lather  may  leave  any  of  his  goods  to 
his  bastards?  Summa  rosclla,  in  the  title  Filius,  par.  5. 
And  Summa  rosclla,  in  the  title  Socictas,  par.  23,  it  seems 
he  may- 

Item,  Whether  the  offence  of  the  father  shall  hurt  the 
son  in  temporal  things  ?§    Summa  rosclla,  in  the  title  Filius. 

Item,  If  a  man  give  all  his  lands  and  goods  to  his 
children,  whether  a  bastard  shall  have  any  part ?||  Summa 
rosclla,  in  the  title  Filius,  par.  22. 

Item,  To  whom  treasure  found  belongeth?lf  Summa 
rosclla,  in  the  title  Furtum,  par.  11. 

Item,  If  a  deer,  or  other  wild  beast,  that  is  so  sore  hurt 
that  he  may  be  taken,  cometh  into  another  man's  gr<  und, 
whether  it  be  his  that  owneth  the  ground,  or  his  that  strake 
him?**      Summa  rosclla,  in  the  title  Fur/urn,  par.  13. 

Item,  Whether  theft  be  in  a  little  thing  as  well  as  in  a 
great  thing  ?ff   Summa  rosclla,  in  the  title  Furtum,  par.  iS. 

Item,  What  pain  a  thief  shall  have?|J  Summa  rosclla,  in 
the  title  Furtum,  par.  22. 

Swiii.  on  Wills,  106. 

t  Ante,  33. 
X  1  B.  C.  459. 

§    Post      26l. 

II  Ante.  180;   1  Corny n's  Digest,  5S3. 

1  1  B.  C  295,  296.  ' 

-  *  2  B.  C.  392. 

ft  4  B.  C,  cap.  16. 

ft  lb. 


248  Doctor   and  Student. 

Item,  If  the  goods  of  dead  men  go  to  the  heirs,  and  that 
of  damned  men?*  5.  Dc  tern's.  Suinma  rosclla,  in  the 
title  Hcercditas,  par.  1. 

Item.  Whether  a  man  shall  be  said  guilty  of  murder  by 
commandment,  counsel,  or  assent ?f  Summa  rose/la,  in 
the  title  Homicidium  2,  -per  totum.  And  like  matter  in 
Homicidium  4,  in  princifio,  and  in  divers  other  cases. 

Item,  A  man  maketh  a  privy  contract  with  a  woman,  and 
after  hath  a  child  by  her,  and  aftermarrieth  another  woman, 
and  hath  a  child,  she  not  knowing  the  first  contract ;  which 
of  the  children  shall  be  his  heir?  Suinma  rosclla,  in  the 
title  Illegitimns,  par.  4,  it  seems  the  latter  shall. 

Item,  Whether  the  pope  may  legitimate  one  to  temporal 
things,  and  to  succeed?  Summa  rosclla,  in  the  title  Ille- 
gitimns: it  seems  he  may  not  as  the  law  now  stands. 

Item,  If  goods  be  found  that  were  left  of  the  owner  as 
forsaken,  who  hath  right  to  them?|  Summa  rosella,  in  the 
title  Invcnia,  par.  2.  And  look  Summa  rosella,  in  the  title 
Furtum,  par.  17. 

And  thus  I  make  an  end  of  these  questions  :  and  because 
you  desirest  me  in  the  13th  chapter  to  shew  thee  somewhat 
where  ignorance  excuseth  in  the  law  of  the  realm,  and 
where  not,  I  will  answer  somewhat  to  thy  question,  and 
so  commit  thee  to  God. 

Chap.  XLVI. —  Where  ignorance  of  the  law  excuseth  in 
the  laivs  of  England,  and  where  not. 

Ignorance  of  the  law  (though  it  be  invincible)  doth  not 
excuse  as  to  the  law  but  in  few  cases  :§  for  every  man  is 
bound  at  his  peril  to  take  knowledge  what  the  law  of  the 
realm  is,  as  well  the  law  made  by  statute  as  the  common 
law  :  but  ignorance  of  the  deed,  which   may  be  called  the 

*  Ante,  130,  225. 

f  4  13.  C.  36,  37. 

J  Post.  zG-j. 

§  Douglas  Rep.  471  ;   ante,  76;  ante,  150;  post.  250. 


Dialogue   II. — Chap.  46.  249 

ignorance  of  the  truth  of  the  deed,  may  excuse  in  many 
casts. 

Doct.  I  put  the  case  that  a  statute  penal  be  made,  and  it 
is  enacted,  that  the  statute  shall  be  proclaimed  by  such  a 
day  in  every  shire,  and  it  is  not  proclaimed  before  the  day, 
and  alter  the  day  a  man  offends  against  the  statute  ;  shall 
he  run  in  the  penalty? 

Stud.  I  think  yea,  if  there  be  no  farther  words  in  the 
statute  to  help  him  ;  that  is  to  say,  that  if  the  proclamation 
be  not  made,  that  no  man  shall  be  bound  by  the  s;alute. 
And  the  cause  is  this :  there  is  no  statute  made  in  this 
realm  but  by  the  assent  of  the  lords  spiritual  and  temporal, 
and  of  all  the  commons  ;*  that  is  to  say,  by  the  knights  of 
the  shire,  citizens  and  burgesses,  that  be  chosen  bv  assent 
of  the  commons,  which  in  the  parliament  represent  the 
estate  of  the  whole  commons:  and  every  statute  there  made 
is  of  as  strong  effect  in  the  law,  as  if  all  the  commons  were 
there  present  personally  at  the  making  thereof.  And  like 
as  there  needed  no  proclamation,  if  all  were  there  present 
in  their  own  person  ;  so  the  law  presumed  there  needeth  no 
proclamation  when  it  is  made  by  their  authority  :  and  then 
when  it  is  enacted,  That  it  shall  be  pioclaimed,  etc.,  that 
is  but  of  the  favour  of  the  makers  of  the  statute,  and  not  of 
necesssity ;  and  it  cannot  therefore  be  taken,  that  their 
intent  was  that  it  should  be  void  if  it  were  not  proclaimed. 
Nevertheless  some  be  of  opinion,  that  if  a  man  before  the 
day  appointed  for  the  proclamation  offend  the  statute,  that 
he  should  not  in  that  case  be  punished  ;  for  they  say 
that  the  intent  of  the  makers  of  the  statute  shall  be  taken  to 
be,  that  none  should  be  punished  before  the  day  :  which  is 
a  doubt  to  some  other.  But  admit  it  to  be  as  they  say,  that 
lie  shall  be  excused,  yet  he  is  not  excused  by  the  ignorance 
of  the  law,  but  because  the  intent  ot  the  makers  excuseth 
h  i  m . 

Doct.   It  is  enacted  in  the  7th  year  of  Rich.  II.,  cap.  6,f 

.(    'list.    25. 

1  Repealed  by  stat.  1  Jac.  1,  c.  25,  and  21  Jac-  i,  c.  2S. 


250  Doctor  and  Student. 

That  every  sheriff  shall  proclaim  the  statute  of  Winchester 
three  times  every  year  in  every  market  town,  to  the  intent 
the  offenders  shall  not  be  excused  by  ignorance,  and  it 
seemeth  by  these  words,  That  it"  no  proclamation  be  made, 
that  the  offender  may  be  excused  by  ignorance. 

Stud.  Some  take  the  intent  of  that  statute  to  be,  that  the 
people  bv  that  proclamation  should  have  knowledge  of-  the 
statute  ot  Winchester,  to  the  intent  that  the  forfeiture  therein 
ma}'  be  taken  as  well  in  conscience  as  in  law  ;  and  some 
take  the  statute  to  be  of  such  effect  as  thou  speakest  of,  that 
is  to  say,  that  no  forfeiture  should  grow  upon  the  statute  of 
Winchester  against  them  that  were  ignorant,  but  proclama- 
tion were  made  according  to  the  said  statute  of  Richard. 
And  if  it  be  so  taken,  the  statute  of  Winchester  is  of  small 
effect  against  most  part  of  the  people  ;  lor  certain  it  is  that  the 
said  proclamation  is  not  made  :  but  admit  it  to  be  as  they  say, 
then  they  that  be  ignorant  be  excused  by  the  said  particular 
estatute  specially  made  in  that  case,  and  not  by  the  general 
rules  of  the  law  :  and  sometimes,  in  divers  statutes  penal,* 
they  that  be  ignorant  be  excused  by  the  same  statute,  as  it 
is  upon  tiit?  statute  of  Rich.  II.,  the  13th  year,  the  2d  statute, 
and  the  last  chapter,  where  it  is  enacted,  That  if  any  person 
take  a  benefice  by  provision,  that  he  shall  be  banished  the 
realm,  and  forfeit  all  his  goods,  and  that  if  he  be  in  the 
realm,  he  avoid  within  six  weeks  after  he  hath  accepted  it, 
and  that  none  shall  receive  him  that  is  so  banished  after  the 
said  six  weeks,  upon  like  forfeiture  if  lie  have  knowledge: 
and  so  he  that  hath  no  knowledge  is  excused  by  the  express 
words  of  the  statute.  And  in  like  wise  he  that  offendeth 
against  Magna  Charta  is  not  excommenged,  but  he  have 
knowledge  that  it  is  prohib  t  that  he  doth.  For  the}'  be 
only  excommenged  by  the  sentence  called  Sententia  lata 
super  cliartus,  that  do  it  willingly,  or  that  do  it  by  ignorance, 
and  correct  not  themselves  within  fifteen  days  alter  they 
have  warning.  And  sometime  they  that  be  ignorant  of  the 
statute  be  excused   from  the  penalty  of  the  statute,  because 

t  Ante,  iS7,  218. 


Dialogue  11. — Chap.  46.  251 

it  shall  be  taken  that  the  intent  of  the  makers  of  the  statute 
was,  that  none  should  be  bound  but  they  that  have  knowl- 
edge :  but  that  any  man  shall  be  discharged  in  the  law  by 
ignorance  of  the  law,  only  for  that  he  is  ignorant,  I  know 
few  cases,  except  it  might  be  applied  to  infants  that  be  in 
their  infancy,  and  within  years  of  discretion  ;*  for  if  igno- 
rance of  the  law  should  excuse  in  the  law,  many  offenders 
would  pretend  ignorance. f 

Doct.  Shall  an  infant  that  hath  discretion,  and  knoweth 
good  fin  m  evil,  be  punished  by  a  penal  statute  that  he  is 
ignorant  in  ? 

Stud.  If  the  statute  be,  that  for  the  offence  he  should 
have  corporal  pain,  I  think  he  shall  be  excused,  and  have 
no  corporal  pain  \%  but  I  suppose  that  that  is  not  for  the  ig- 
norance ;  tor  though  he  knew  the  statute,  and  willingly  of- 
fended, yet  I  think  he  shall  have  no  corporal  pain  as  where 
he  pleads  joint-tenancy  by  deed  that  is  found  against  him, 
or  if  he  plead  a  record  in  assise,  and  faileth  of  it  at  his 
day  :  but  that  is  because  the  law  presumeth,  that  it  was  not 
the  intent  of  the  makers  of  the  statute  that  he  should  have 
that  punishment. §  But  if  he  be  of  years  of  discretion  to 
know  good  from  evil,  whether  he  shall  then  forfeit  the  pen- 
alty of  a  penal  statute,  it  is  more  doubt :  for  it  is  commonly 
holden,  that  if  an  infant  had  not  been  excepted  in  the 
statute  of  forejudgment,  that  the  forejudgment  should  have 
bound  him,  and  so  shall  his  cesser,  and  his  levying  of  a 
cross  against  the  statute|)  or  if  he  be  gardein  of  a  prison, 
and  sutler  a  prisoner  to  escape,  he  shall  pav  the  debt,  be- 
cause the  statutes  be  general  :^[  and  if  he  should  by  the 
statutes  be  bound  within  age,  like  reason  will  that  he  may 
by  a  statute  penal  leese  his  goods. 

Doct.   If  an  infant  do  a   murther  or  felony  at  such  wars 

*Ante,  77,  249. 

f  Ante,  24S. 

J  1  Halo's  P.  C.  21 ;   Plow.  364. 

§  1  Hale's  H.  P.  C.  za. 

II  Obsolete. 

\  2  Inst.  3S2. 


252  Doctor   and   Student. 

as  he  hath  discretion  to  know  the  law,  shall  not  he  have  the 
punishment  of  the  law,  as  one  of  full  age? 

Stud.  I  think  yea  ;*  but  that  is  by  an  old  maxim  of  the 
law  lor  eschewing?  of  murders  and  felonies  :  and  so  it  is  of 
a  trespass. f  But  these  cases  run  not  upon  the  ground  of' 
ignorance,  but  with  what  acts  infants  shall  be  punishable 
or  not  punishable  for  the  tenderness  of  their  age,  though 
they  be  not  ignorant. 

Doct.  Be  not  yet  knights  and  noblemen,  that  are  bound 
most  properly  to  set  their  study  to  acts  of  chivalry,  for  de- 
fence of  the  realm,  and  husbandmen,  that  must  use  tillage 
and  husbandry  for  the  sustenance  of  the  commonalty,  and 
that  may  not  by  reason  of  their  labour  put  themselves  to 
know  the  law,  discharged  by  ignorance  of  the  law? 

Stud.  No  verily  :  for  sith  ail  were  makers  of  the  statute, 
the  law  presumelh  that  all  have  knowledge  of  that  that  they 
make,  as  it  is  said  before  ;  and  as  they  be  bound  at  their 
peril  to  take  knowledge  of  the  statute  that  they  make,  so  be 
all  them  that  come  alter  them. %  And  as  for  knights  and 
other  nobles  of  the  realm,  me  seemeth  that  they  should  be 
bound  to  take  knowledge  of  the  law,  as  well  as  any  other 
within  the  realm,  except  them  that  give  themselves  to  the 
stud}'  and  exercise  of  the  law,  and  except  spiritual  judges, 
that  in  many  cases  be  bound  to  take  knowledge  of  the  law 
of  the  realm,  as  it  is  said  before  in  Chap.  25 . §  For  though 
they  be  bound  to  acts  of  chivalry  for  defence  of  the  realm, 
yet  they  be  bound  also  to  acts  ot  justice,  and  that  (it 
seemeth)  more  than  other  be,  by  reason  of  their  great  pos- 
sessions and  authority,  and  lor  the  well-ordering  of  the  ten- 

*  The  age  of  discretion  at  which  infants  are  generally  supposed  to  know 
good  from  evil,  and  consequently  to  be  capable  of  committing  crimes,  is 
14.  Co.  Lilt.  247;  1  II.  II.  P.  C.  25.  But  if  an  infant  uider  fourteen,  and 
above  seven  years  <>l"  age,  commits  a  criminal  offence;  and  upon  his  in- 
dictment there  are  circumstances  in  his  case  to  induce  the  jury  to  believe 
that  he  was  cap<ir.  doll  at  the  time  the  crime  was  perpetrated,  he  may  be 
co  ivicted  and  punished,  for  malitia  supplct  cetatum.     4  B.  C.  23. 

j  12  Mod.  332. 

J  Ante,  31 . 

§  Ante,  18,  1S3. 


Dialogue   II. — Chap.  47.  253 

ants,  servants  and  neighbours,  that  many  times  have  need 
of  their  help  ;  and  also  that  they  be  oft  Called  to  be  of  the 
king's  council,  and  to  the  general  councils  of  the  realm, 
where  their  Counsel  is  right  expedient  and  necessary  for  the 
commonwealth.  And  therefore  if  the  noblemen  of  this 
realm  would  see  their  children  brought  up  in  such  manner, 
that  they  should  have  learning  and  knowledge  more  than 
they  have  commonly  used  to  have  in  time  past,  specially  of 
the  grounds  and  principles  of  the  law  of  the  realm,  wherein 
they  be  inherit,  (though  they  had  not  the  high  cunning  of 
the  whole  body  of  the  law,  but  after  such  manner  as  Mr. 
Fortescue  in  his  book  that  he  entituleth  the  book,  De  land- 
{bus  legtun  Auglice*  advertiseth  the  prince  to  have  knowl- 
edge of  the  laws  of  the  realm)  I  suppose  it  would  be  a 
greaf  help  hereafter  to  the  ministration  of  justice  of  this 
realm,  a  great  surety  for  himself,  and  a  right  great  glad- 
ness to  all  the  people.  For  certain  it  is,  the  more  part  of 
the  people  would  more  gladly  hear  that  their  rulers  and 
governors  intended  to  order  them  with  wisdom  and  justice, 
than  with  power  and  great  retinues.  But  ignorance  of  the 
deed  many  times  excuseth  in  the  laws  of  England  :f  and  I 
shall  shortly  touch  some  cases  thereof,  to  shew  where  it 
shall  excuse,  and  where  it  shall  not  excuse  ;  and  then  the 
reader  may  add  to  it  after  his  pleasure,  and  as  he  shall 
think  to  be  convenient. 

Chap.  XLVII. — Certain  cases  and  grounds  where  ig- 
norance of  the  deed  excuseth  in  the  laws  of  England ^ 
and  vjherc  not. 

If  a  man  buy  a  horse  in  open  market  of  him  that  in  right 
had  no  property  to  him,  not  knowing  but  that  he  hath  right, 
he  hath  good  title  and  right  to  the  horse. %  and  the  ignorance 
shall  excuse  him.     But  if  he  had  bought  him  out  of  the  open 

*Cap.  4. 

t  Post.,  cap.  47. 

(Provided  the  directions  laid  down  in  the  statutes,  2  P.  &  M.,  c.  7,  and 
31  Eliz.,  C  12,  are  followed;  for  which  vide  the  statutes,  and  2  Inst.  719, 
with  2  13.  C.  451. 


254  Doctor  and  Student. 


market,  or  if  he  had  known  that  the  seller  had  no  right,  the 
buying  in  open  market  had  not  excused  him.  Also  if  a 
man  retain  another  man's  servant,  not  knowing-  that  he  is 
retained  with  him,  the  ignorance  excuseth  him  both  of  the 
offence  that  was  at  the  common  law  against  the  maxim  that 
prohibited  such  retaining  of  another  man's  servant;  and  also 
against  the  statute  35  Edw.  III.,  whereby  it  is  prohibit,  upon 
pain  of  imprisonment,  that  none  shall  retain  no  servant  that 
departeth  within  his  term,  without  licence  or  reasonable 
cause  :  for  it  hath  been  alway  taken,  that  the  intent  of  the 
makers  of  the  said  statute  was,  that  they  that  were  ignorant 
of  the  first  retainor  should  not  run  in  any  penalty  of  the 
statute.*  And  the  same  law  is  of  him  that  retaineth  one 
that  is  ward  to  another,  not  knowing  that  he  is  his  ward. 
And  if  homage  be  due,  and  the  tenant  after  that  the  homage 
is  due  maketh  a  feoffment,  and  after  the  lord,  not  knowing 
of  the  feoffment  distraineth  for  the  homage  ;f  in  that  case 
that  ignorance  shall  excuse  him  of  his  damages  in  a  re- 
plevin, though  he  cannot  avow  for  the  homage.  But  if  he 
had  known  of  the  feoffment,  he  should  have  yielded  dam- 
ages for  the  wrongful  taking.  Also  if  a  man  be  bound  in 
an  obligation  that  he  shall  repair  the  houses  of  him  that  he 
is  bound  to  by  such  a  certain  time,  as  oft  as  need  shall  re- 
quire, and  after  the  houses  have  need  to  be  repaired,  but  he 
that  is  bound  knoweth  it  not ;  that  ignorance  shall  not  ex- 
cuse, for  he  hath  bound  himself  to  it,  and  so  he  must  take 
knowledge  at  his  peril. J  But  if  the  condition  had  been, 
that  he  should  repair  such  houses  as  he  to  whom  he  was 

*  This  statute  is  repealed  by  the  act  of  5  Eliz.,  c.  4,  and  the  remedy  now 
pursued  for  retaining  a  servant  in  the  service  of  another,  is  an  action  by 
the  old  master  against  the  new  one,  and  the  servant,  or  either  of  them,  for 
damages;  but  in  order  to  intitle  a  man  to  the  action,  it  is  as  necessary  now 
as  it  was  when  the  statute  ol  Edward  was  in  force,  that  the  new  master  should 
know  of  the  servant's  engagement  with  the  other  at  the  time  of  his  re- 
taining, or  that  he  should  afterward  refuse  to  restore  him  upon  informa- 
tion or  demand.     2  Lev.  63;  Faucett  v.  Bears  et  ux.,   1   Leon.  240;  3  B. 

C  14-- 

t  Ante,  24. 

{Hob.  14;  S  Rep.  92,  b. 


Dialogue   II. — Chap.  47.  255 

bound  should  assign,  and  after  he  assigneth  certain  houses 
to  be  repaired,  but  he  that  is  bound  hath  no  knowledge  of 
that  assignment  :  that  ignorance  shall  excuse  him  in  the 
law,  for  he  hath  not  bound  himself  to  no  reparation  in  cer- 
tain, but  to  such  as  the  party  will  assign,  and  if  he  assign 
none,  he  is  bound  to  none  ;*  and  therefore  sith  he  that 
should  make  the  assignment  is  privy  to  the  deed,  he  is 
bound  to  give  notice  of  his  own  assignment :  but  if  the 
assignment  had  been  appointed  to  a  stranger,  then  the 
obligor  must  have  taken  knowledge  of  the  assignment  at 
his  peril. f  Also,  if  a  man  buy  lands  whereunto  another 
hath  title,  which  the  buyer  knoweth  not,  that  ignorance 
excuseth  not  him  in  the  law,  no  more  than  it  cloth  of 
goods.  J  Also,  if  a  servant  come  with  his  master's  horse  to 
a  town  that  by  custom  may  attach  goods  for  debt,  and  upon 
a  plaint  against  the  servant  an  officer  of  the  town,§  by  in- 
formation of  the  party,  attached  the  master's  horse,  think- 
ing that  it  were  the  servant's  horse,  that  ignorance  excuseth 
him  not;  for  when  a  man  will  do  an  act,  as  to  enter  into 
lands,  seise  goods,  take  a  distress,  or  such  other,  he  must 
by  the  law  at  his  peril  see  that  that  he  doth  be  lawfully 
done,  as  in  the  case  before  rehearsed.  And  in  like  wise, 
if  a  sheriff  by  a  replevin  deliver  other  beasts  than  were  dis- 
trained, though  that  the  party  that  distrained  shew  him 
they  were  the  same  beasts,  yet  an  action  of  trespass  lieth 
against  him,  and  ignorance  shall  not  excuse  him:j|  for  he 
shall  be  compelled  by  the  law,  as  all  officers  commonly  be, 
to  execute  the  king's  writ  at  his  peril  according  to  the  tenor 
of  it,  and  to  see  that  the  act  that  he  doth  be  lawfully  done. 
But  otherwise  it  is  after  some  men,  if  upon  summons  in  a 
■pracipc  quod  ?'cddat,  the  sheriff  by  information  of  the  de- 
mandant   summoneth    the   tenant    in    another   man's   land, 

*  12  Mod.  44. 

f  March,  156. 

\  Ante,  149. 

§  Ante,  236;  Br.  Trespass,  pi.  99. 

||  Br.  Office  and  Officer,  pi.  10;  Br.  Notice,  pi.  23. 


256  Doctor  and  Student. 

thinking  it  for  the  tenant's  land;*  there  they  say  he  shall 
he  excused  :  for  in  that  case  he  doth  not  seise  the  land,  ne 
take  possession  in  the  land,  but  only  doth  summon  the  ten- 
ant upon  the  land  ;  and  the  writ  commandeth  him  not  that 
he  shall  summon  the  tenant  upon  his  own  land,  but  gen- 
erally that  he  shall  summon  him,  and  nameth  not  in  what 
land  :  and  then  by  an  old  maxim  in  the  law  it  is  taken,  that 
he  shall  summon  him  upon  the  land  in  demand  :  and  there- 
fore though  he  mistake  the  land,  and  be  ignorant  of  it,  yet 
if  the  demandant  inform  him  that  that  is  the  land  that  he 
demandeth,  that  sufficeth  to  the  sheriff  as  to  his  entry  for 
the  summoning,  as  they  pay,  though  it  be  not  the  tenant's 
land.  And  here  I  make  an  end  of  these  questions  for  this 
time. 

Doct.  I  pray  thee  yet  or  we  depart  take  a  little  more 
pain  in  my  desire. 

Stud.  What  is  that? 

Doct.  That  thou  wouldst  shew  me  thy  mind  in  divers 
cases  of  the  law  of  the  realm,  which  (as  me  seemeth)  stand 
not  so  clearly  with  conscience  as  they  should  do.  And 
therefore  I  would  gladly  hear  thy  conceit  therein,  how  they 
may  stand  with  conscience. 

Stud.  Put  the  cases,  and  I  shall  with  good-will  say  as  I 
think  to  them. 

Chap.  XLVIII. —  The  first  question  of  the  doctor,  How 
the  law  of  England  may  be  said  reasonable,  that  -pro- 
hibiteth  than  that  be  arraigned  upon  an  indictment  of 
felony  or  murder,  to  have  counsel. 

Stud.  Methinketh  that  the  law  in  that  point  is  very  good 
and  indifferent,  taking  the  law  therein  as  it  is. 

Doct.  Why?  what  is  the  law  in  this  point? 

Stud.  The  law  is  as  thou  sayest,  that  he  shall  have  no 
counsel  ;f  but  then  the  law  is  farther,  that  in  all  things  that 

t  10  II.  C.  12.  b;   ii  II.  C.  4;   18  E.  3,  52,  b;  25  E.  3,  39,  b. 
Though  this  is  the  standing  law  of  the  land,  yet  the  judges  seldom  re- 
fuse  a  prisoner  indicted  for  felony  the  privilege  of  having  a  counsel   to 


Dialogue    II. — Chap.   48.  257 


pertain  to  the  order  of  pleading,  the  judges  shall  so  instruct 
him  and  order  him,  that  he  shall  run  into  no  jeopardy  by 
his  mispleading.*  As  if  he  will  plead  that  he  never  knew 
the  man  that  was  slain,  or  that  he  never  had  a  pennyworth 
of  the  goods  that  is  supposed  that  he  should  steal  :  in  these 
cases  the  judges  are  hound  in  conscience  to  inform  him  that 
he  must  take  the  general  issue,  and  plead  that  he  is  not 
guilty  :f  for  though  they  be  set  to  be  indifferent  between  the 
king  and  the  party,  as  to  the  party  and  to  the  principal 
matter,  as  they  be  in  all  other  matters  ;  yet  they  be  in  this 
1  se  to  see  that  the  party  take  no  hurt  in  form  of  pleading 
in  such  matters  as  he  shall  shew  to  be  the  truth  of  the  mat- 
ter.! And  that  it  is  a  great  favour  of  the  law.  For  in  ap- 
peal, though  the  justices  of  favour  will  most  commonly  help 
forth  the  party,  and  sometimes  his  counsel  also,  in  the  form 
of  pleading,  as  the}'  do  also  man}^  times  in  common  pleas  ; 
yet  they  might  in  those  cases,  if  they  would,  bid  the  party 
and  his  counsel  plead  at  their  peril.  But  they  may  not  do 
so  with  conscience  upon  indictments,  as  me  seemeth  :  for 
it  were  a  great  unreasonableness  in  the  law,  if  it  should 
prohibit  him  that  standeth  in  jeopardy  of  his  life,  that  he 
should  have  no  counsel,  and  to  drive  him  to  plead  after  the 
strait  rules  and  formalities  of  the  law  that  he  knoweth  not. 
Doct.  But  what  if  he  be  known  lor  a  common  offender, 
or  that  the  judges  knowby  examination,  or  by  an  evident 
presumption,  that  he  is  guilty,  and  he  asketh  sanctuary,  or 
pleadeth  misnomer,  or  hath  some  record  to  plead,  that  he 
cannot  plead  after  the  form:  may  not  the  judges  in  these 
cases  bid  him  plead  at  his  peril? 

stand  bv  him,  and  instruct  him  with  respect  to  matters  of  fact,  and  in  cases 
of  high  treason  or  misprision  of  treason,  the  prisoner  is  enabled  bv  stat. 
7  W.  3,  c.  3,  to  have  two  counsel  to  be  named  bv  him,  and  assigned  bv  the 
court  or  judge,  and  this  indulgence  by  stat.  20  Geo.  2,  c  30,  is  (with  great 
reason  extended  to  parliamentary  impeachments  for  high  treason.  4B.  C. 
350;  Fosl  x's  Crown  Law,  232. 
3  !»st.  137. 

t2  Haw.  P.  C.  399. 

J2  Buls.  147:   3  Inst.  1.57. 

17 


258  Doctor  and  Student. 


S/nd.  I  suppose  they  may  not :  for  though  he  be  a  com- 
mon offender,  or  that  he  be  guilty,  yet  he  ought  to  have 
that  the  law  giveth  him,  and  that  he  shall  have  the  effect 
of  his  pleas,  and  of  his  matters  entered  after  the  form  of  the 
law.  And  also  sometime  a  man  by  examination,  and  by 
witness,  may  appear  guilty  that  is  not ;  and  in  like  wise 
there  may  be  a  vehement  suspicion  that  he  is  guilty,  and 
yet  he  is  not  guilty  :  and  therefore  for  such  suspicion  or 
vehement  presumptions  methinketh  a  man  may  not  with 
conscience  be  put  from  that  he  ought  to  have  by  the  law, 
ne  yet  although  the  judges  knew  it  of  their  own  knowledge. 
But  if  it  were  in  appeal,  I  suppose  that  the  judges  might  do 
therein  as  they  should  think  best  to  be  done  in  conscience  ;* 
for  there  is  no  law  that  bindeth  them  to  instruct  him,  (but 
as  they  do  commonly  to  the  parties  of  favour  in  all  other 
cases)  but  they  may,  if  they  will,  bid  him  plead  at  his  peril, 
by  advice  of  his  counsel  ;  and  if  the  appellee  be  poor,  and 
have  no  counsel,  the  court  must  assign  him  counsel,  if  he 
ask  it.  as  they  must  do  in  all  other  pleas  :  and  that  me- 
thinketh that  are  bound  to  do  in  conscience,  though  the  ap- 
pellee were  never  so  great  an  offender,  and  though  the 
judges  knew  never  so  certainly  that  he  were  guilty,  for  the 
law  bindeth  them  to  do  it.  And  so  methinketh  that  there 
is  great  diversity  between  an  indictee  and  an  appellee. 
And  the  reason  why  the  law  prolribiteth  not  counsel  in  ap- 
peal, as  it  doth  in  an  indictment,  I  suppose  is  this  :  There 
is  no  appeal  brought,  but  that  of  common  presumption  the 
appellant  hath  great  malice  against  the  appellee  ;t  as  when 
the  appeal  is  brought  by  the  wife  of  the  death  of  her  hus- 
band, or  by  the  son  of  the  death  of  his  father,  or  that  an 
appeal  of  robbery  is  brought  for  stealing  of  goods.  And 
therefore  if  the  judges  should  in  those  cases  shew  them- 
selves to  instruct  the  appellees,  the  appellants  would  grutch 
and  think  them  partial  :  and  therefore  as  well  for  the  in- 
demnity of  the  court,  as  of  the  appellee,  in  case  that  he  b'j 

*  Br.  Corone,  pi.  54;  3  Inst.  29;  2  Haw,  P.  C.  400;  Finch  Law,  386. 
t  Haw.  P.  C.  401 ;  Dy.  296;   Finch  Law,  386. 


Dialogue    II. — Chap. 


49-  259 


not  guilty,  the  law  suffereth  the  appellee  to  have  counsel. 
But  when  that  a  man  is  indicted  at  the  king's  suit,  the  king 
intendeth  nothing  but  justice  with  favour,  and  that  is  to  the 
n-st  and  quietness  of  his  faithful  subjects,  and  to  pull  away 
misdoers  among  them  charitably  :  and  therefore  he;  will  be 
contented  that  his  justices  shall  help  forth  the  offenders  ac- 
cording to  the  truth  as  far  as  reason  and  justice  may  suffer. 
And  as  the  king  will  be  contented  therein,  it  is  to  presume 
that  the  counsel  will  be  contented  ;  and  so  there  is  no  danger 
thereby,  neither  to  the  court,  ne  to  the  party.  And  as  I 
suppose  for  this  reason  it  began  that  they  should  have  no 
counsel  upon  indictments,  and  that  hath  so  long  continued, 
that  it  is  now  grown  into  a  custom,  and  into  a  maxim  of  the 
law,  that  they  shall  none   have.* 

Doct.  But  if  the  judges  knew  of  their  own  knowledge 
that  the  indictee  was  guilty,  and  then  he  pleadeth  misnomer, 
or  a  record  that  he  was  autcrfoils  arraigned,  and  acquit  of 
the  same  murther  or  felony,  and  the  judges  of  their  own 
knowledge  know  that  the  plea  is  untrue,  may  they  not  then 
bid  him  plead  at  his  peril? 

Stud.  I  think  yes;  but  if  they  know  of  their  own  knowl- 
edge that  he  were  guilty  of  the  murther  or  felony,  but  that 
the  plea  was  untrue  they  knew  not  but  by  conjecture  or  in- 
formation, I  think  tluw  might  not  then  bid  him  plead  at  his 
peril. 

Chap.     XL1X. —  The    second    question    of    the     doctor. 

Whether  -.ear runty  of  the  younger  brother  that  is  taken 

us  heir,  because  it  is  not  known  but  that  the  eldest  brother 

is  dead,  be  in  conscience  a  bar  unto   the  eldest   brother, 

us  if  is  in  laze.' 

Doct.  A  man  seised  of  lands  in  fee  hath  issue  two  sons, 
the  eldest  son  goeth  beyond  the  sea,  and  because  a  common 
voice  is  that  he  is  dead,  the  younger  brother  is  taken  for 
heir,  the  father  dieth,  the  younger  brother  entereth  as  heir, 


*3  Cro.  147;   Ilutt.  133;  ante,  255. 


iGo  Doctor  and  Student. 

and  alieneth  the  land  with  a  warranty,  and  dielh  without 
any  heir  of  his  body,  and  after  the  eldest  brother  cometh 
again,  and  claimeth  the  land  as  heir  to  his  father;  whether 
shall  he  be  barred  by  that  warranty  in  conscience,  as  he  is 
in  the  law  ? 

Stud.  It  is  a  maxim  in  the  law,  that  the  eldest  brother 
shall  in  that  case  be  barred  :*  and  that  maxim  is  taken  to 
be  of  as  strong  effect  in  the  law,  as  if  it  were  ordained  by 
statute  to  be  a  bar.  And  it  is  as  old  a  law  that  such  a  war- 
ranty shall  bar  the  heir,  as  it  is  that  the  inheritance  of  the 
father  shall  only  descend  to  the  eldest  son.  And  sith  the 
law  so  is,  why  then  should  not  conscience  follow  the  law, 
as  well  as  it  doth  in  that  point,  that  the  eldest  son  shall  have 
the  land? 

Doct.  For  there  appeareth  no  reasonable  cause  where- 
upon the  maxim  ought  to  have  a  lawful  beginning :  for 
what  reason  is  it  that  the  warranty  of  an  ancestor  that  hath 
no  right  to  land  should  bar  him  that  hath  right?  And  if  it 
were  ordained  by  statute,  that  one  man  should  have  an- 
other man's  land,  and  no  cause  is  expressed  why  he  should 
have  it ;  in  that-  case,  though  he  might  hold  the  land  by 
force  of  that  statute,  yet  he  could  not  hold  it  in  conscience, 
without  there  was  a  cause  why  he  should  have  it.  And 
these  cases  be  not  like,  as  me  seemeth,  to  the  forfeiture  of 
goods  by  an  outlawry  :  for  it  will  agree  for  this  time,  that 
that  forfeiture  standeth  with  conscience,  because  it  is  or- 
dained for  ministration  of  justice  :  but  I  cannot  perceive 
any  such  case  here  ;  and  therefore  methinketh  that  this 
case  is  like  to  the  maxim  that  was  at  the  Common  law  of 
wreck  of  the  sea,  that  is  to  say,  that  if  a  man's  goods  had 
been  wrecked  upon  the  sea,  that  the  goods  should  have 
been  immediately  forfeited  to  the  king.f  And  it  is  holden 
by  all  doctors,  that  that  law  is  against  conscience,  except  in 
certain  cases  that  were  too  long  to  rehearse  now.  And  it 
was  ordained  by  the  statute  of  West.  i,|  that  if  a  dog  or 

*Lict.,  sec.  707;  Shcp.  Touch.  1S9. 

f2  Inst.  167;  Molloy,  237;  Finch  Law,  137;  Ld.  Raym.  474;  post.  265. 

%  Cap .  4. 


Dialogue   II. — Chap.  49.  d6i 

cat  come  alive  to  the  land,  that  the  owner,  if  he  prove  the 
goods  within  a  year  and  a  day  to  be  his,  shall  have  them: 
whereby  the  said  law  of  wrecks  of  the  sea  is  made  more 
sufferable  than  it  was  before.  And  some  think  in  this  case 
that  this  warranty  is  no  bar  in  conscience,  though  it  be  a 
bar  in  the  law. 

Stud.  I  pray  thee  keep  that  case  of  wreck  of  the  sea  in 
thy  remembrance,  and  put  it  hereafter  as  one  of  thy  ques- 
tions, and  thereupon  shew  me  farther  thy  mind  therein, 
and  I  shall  with  good-will  shew  thee  my  mind.  And  as  to 
this  case  that  we  be  in  now,  methinketh  the  maxim  whereby 
the  warranty  shall  be  a  bar  is  good  and  reasonable  :  for  it 
seemeth  not  against  reason  that  a  man  shall  be  bound,  as 
to  temporal  things,  by  the  act  of  his  ancestor  to  whom  he 
is  heir:*  for  like  as  by  the  law  it  is  ordained,  that  he  shall 
have  advantage  by  the  same  ancestor,  and  have  all  his 
lands  by  descent,  if  he  have  any  right;  so  it  seemeth  that  it 
is  not  unreasonable,  though  the  law,  for  the  privity  of  blood 
that  is  between  them,  suffer  them  to  have  a  disadvantage 
by  the  same  ancestor. f  But  if  the  maxim  were,  that  if  any 
of  his  ancestors,  though  he  were  not  heir  to  him,  made 
such  a  warranty,  that  it  should  be  a  bar;  I  think  that 
maxim  were  against  conscience,  for  in  that  case  there  were 
no  ground  nor  consideration  to  prove  how  the  said  maxim 
should  have  a  lawful  beginning,  wherefore  it  were  to  be 
taken  as  a  maxim  against  the  law  of  reason.  But  me- 
thinketh it  is  otherwise  in  this  case,  for  the  reason  that  I 
have  made  before. 

Doct.  If  the  father  bind  him  and  his  heirs  to  the  pay- 
ment of  a  debt,  and  die; %  in  that  ease  the  son  shall  not  be 
bound  to  pay  the  debt,  unless  he  have  assets  by  descent 
from  his  lather.  And  so  I  would  agree,  that  if  this  man 
have  assets  by  descent  from  the  ancestor  that  made  the 
warranty,  that  he  should   have  been  barred:  but  else   me- 

\nti\  247. 
j  Ante,  114. 
%  2  13.  C.  340;  Strange,  665;   P.  Wms.  Rep.  777. 


262  Doctor   and   Student. 

thinketh  it  should  stand  hardly  with  conscience  that  it 
should  be  a  bar.* 

Stud.  In  that  case  of  the  obligation  the  law  is  as  thou 
sayest :  and  the  cause  is,  for  that  the  maxim  of  the  law  in 
that  case  is  none  other,  but  that  he  shall  be  charged  if  he 
have  assets  by  descent :  but  if  the  maxim  had  been  general, 
that  the  heir  should  be  bound  in  that  case  without  any  as- 
sets, or  if  it  were  ordained  by  statute  that  it  should  be  so,  I 
think  that  both  the  maxim  and  the  statute  should  well  stand 
with  conscience.  And  like  law  is,  where  a  man  is  vouched 
as  heir,  he  may  enter  as  he  that  hath  nothing  by  descent : 
but  where  he  claimeth  the  land  in  his  own  right,  there  the 
warranty  of  his  ancestor  shall  be  a  bar  to  him,  though  he 
have  no  assets  from  the  same  ancestor  :  and  though  it  be 
said  in  Ezekiel,  cap.  18,  "  That  the  son  shall  not  bear  the 
-wickedness  of  the  father"  that  is  understood  spiritually. 
But  as  to  temporal  goods,  the  opinion  of  the  doctors  is,  that 
the  son  sometime  may  bear  the  offence  of  his  father.  \ 

Doct.  Now  that  I  have  heard  thy  mind  in  this  case,  I 
will  take  advisement  therein  till  a  better  leisure,  and  will 
now  proceed  to  another  question. 

Stud.  I  pray  thee  do  as  thou  sayest,  and  I  shall  with 
good-will  make  answer  thereto  as  well  as  I  can. 

Chap.  L. —  The  third  question  of  the  doctor,  If  a  man 
■prosecute  a  collateral  -warranty ,  to  extinct  a  right  that 
h<-  knowcth  another  man  hath  to  land,  whether  it  be  a 
bar  in  conscience,  as  it  is  in  law,  or  not? 

Doct.  A  man  is  disseised  of  certain  land,  the  disseisor 
selleth  the  land,  etc.,  the  alienee  knowing  of  the  disseisin, 
obtaineth  a  release  with  a  warranty  of  an  ancestor  collat- 
eral to  the  disseisee,  that  knoweth  also  the  right  of  the  dis- 
seisee ;$  that  ancestor  collateral  dieth,  after  whose  death 
the  warranty  descendeth  upon  the  disseisee  :  whether  may 

*  Rao  El.  27. 

t  Ante,  247,  260. 

X  Shep.  Touch.  188;  ante,  91. 


Dialogue   II. — Chap.   50.  162 

the  alienee  in  that  case  hoid  the  land  in  conscience  as  he 
may  by  the  law  ? 

Stud.  Sith  the  warranty  is  descended  upon  him,  whereby 
he  is  barred  in  the  law,  methinketh  that  he  shall  also  be 
barred  in  conscience  ;*  and  that  this  case  is  like  to  the  case 
in  the  next  chapter  before,  wherein  I  have  said  that  (as 
methinketh)  it  is  a  bar  in  conscience. 

Doct.  Though  it  might  be  taken  for  a  bar  in  conscience 
in  that  case,  yet  methinketh  in  this  ease  it  cannot.  For  in 
that  case  the  younger  brother  entered  as  heir,  knowing 
none  other  but  that  he  was  heir  of  right,  and  after,  when 
he  sold  the  land,  the  buyer  knew  not  but  that  he  that  sold 
it  had  good  right  to  sell  it,  and  so  he  was  ignorant  of  the 
title  of  the  eldest  brother  ;  and  that  ignorance  came  by  the 
default  and  absence  of  himself  that  was  the  eldest  brother  ; 
but  in  this  case  as  well  the  buyer,  as  he  that  made  the  col- 
lateral warranty,  knew  the  right  of  the  disseisee,  and  did 
that  they  could  to  extinct  the  right,  and  so  they  did  as  they 
would  not  should  have  been  clone  to  them  :  and  so  it  seem- 
eth  that  he  that  hath  the  land  may  not  with  conscience 
keep  it. 

Stud.  Though  it  be  as  thou  sayest  that  all  they  offended 
in  obtaining  of  the  said  collateral  warranty  ;  yet  such  of- 
fence is  not  to  be  considered  in  the  law,  but  it  be  in  very 
special  cases  :  for  if  such  alledgings  should  be  accepted  in 
the  law,  releases,  and  other  writings,  should  be  of  small 
effect,  and  upon  every  light  surmise  all  writings  might 
come  in  trial,  whether  they  were  made  with  conscience  or 
not.  Therefore  to  avoid  that  inconvenience,  the  law  will 
drive  the  party  to  answer  only  whether  it  be  his  deed  or 
not,  and  not  whether  the  deed  were  made  with  conscience  or 
against  conscience  :  and  though  the  party  may  be  at  a  mis- 
chief thereby  ;  yet  the  law  will  rather  suffer  the  mischief 
than  the  said  inconvenience.  And  like  law  is,  if  a  woman- 
covert  for  dread  of  her  husband  by  compulsion  of  him  lew 
a  fine,  yet  the  woman  alter  her  husband's  death  shall   not 

*  2  Inst.  335;  ante,  260. 


264  Doctor  and  Student. 

be  admitted  to  shew  that  matter  in  avoiding  of  the  fine,  for 
the  inconvenience  that  might  follow  thereupon.*  And 
after  the  opinion  of  many  men,  there  is  no  remedy  in  these 
cases  in  the  chancery.  For  they  say  that  where  the  Com- 
mon law,  in  cases  concerning  inheritance,  putteth  the  party 
upon  any  averment  for  eschewing  of  an  inconvenience  that 
might  follow  of  it  among  the  people,  that  if  the  same  in- 
convenience should  follow  in  the  Chancery,  if  the  same 
matter  would  be  pleaded  there,  that  no  subpoena  should  lie 
in  such  cases  :  and  so  it  is  in  the  cases  before  rehearsed  ; 
for  as  much  vexation,  delay,  costs  and  expences  might 
grow  to  the  party,  if  he  should  be  put  to  answer  to  such 
averments  in  the  Chancery,  as  if  he  were  put  to  answer  for 
them  at  the  Common  law  :  and  therefore  they  think  that  no 
subpoena  lieth  in  the  said  cases,  ne  in  other  like  unto  them. 
Nevertheless  I  do  not  take  it  that  their  opinion  is,  that  he 
that  bought  the  land  in  this  case  may  with  good  conscience 
hold  the  land,  because  he  shall  not  be  compelled  by  no  law 
to  restore  it ;  but  that  he  is  in  conscience  and  by  the  law  of 
reason  bound  to  restore  it,  or  otherwise  to  recompence  the 
part}',  so  as  he  shall  be  contented.  And  I  suppose  verily 
it  is  so,  if  he  will  keep  his  soul  out  of  peril  and  danger. 
And  after  some  men,  to  these  cases  may  he  resembled  the 
case  of  a  fine  with  non-claim,  that  is  remembered  before  in 
the  24th  chapter  of  this  book,*  where  a  man  knowing 
another  to  have  right  to  certain  land,  causeth  fine  to  be 
levied  thereof  with  proclaimation,  and  the  other  suffereth 
five  years  to  pass  without  claim  ;  in  that  case  he  hath  no 
remedy  neither  by  Common  law,  nor  by  subpoena,  and  that 
yet  he  that  levied  the  fine  is  hound  to  restore  the  land  in 
conscience.  And  methinketh  I  could  right  well  agree, 
that  it  should  be  so  in  this  case,  and  that  specially,  because 
the  party  himself  knoweth  perfectly  that  the  said  collateral 
warranty  was  obtained  by  covin  and  against  conscience. 


*  2  Inst.  515;  Coke  Reading,  7. 
■j-  Ante,  62,  no,  143. 


Dialogue    II. — Chap.  51.  265 


Chap.  LI. —  The  fourth  question   of the  doctor  is  of  the 
-wreck  of  the  sea. 

Doct.  I  pray  thee  let  me  now  hear  thy  mind  how  the  law 
of  England  concerning  goods  that  be  wrecked  upon  the  sea 
may  stand  with  conscience,  for  I  am  in  great  doubt  of  it. 

Stud.  I  pray  thee  let  me  first  hear  thine  opinion,  what 
thou  thinkest  therein. 

Doct.  The  statute  of  West.  1,  that  speaketh  of  wrecks  is, 
That  if  any  man,  dog,  or  cat,  come  alive  unto  the  land  out 
of  a  ship,  or  barge,  that  it  shall  not  be  judged  for  wreck  :* 
so  that  if  the  party  to  whom  the  goods  belong  come  within 
a  year  and  a  day,  and  prove  them  to  be  his,  that  he  shall 
have  them  ;f  or  else  that  they  shall  remain  to  the  king. 
And  methinketh  that  the  said  statute  standeth  not  with  con- 
science ;  for  there  is  no  lawful  cause  why  the  part)-  ought 
to  forfeit  his  goods,  ne  the  king  or  lords  ought  to  have  them, 
for  there  is  no  cause  of  forfeiture  in  the  party,  but  rather  a 
cause  of  sorrow  or  heaviness  :  and  so  the  law  seemeth  to 
add  sorrow  upon  sorrow. %  And  therefore  doctors  hold 
commonly  that  he  that  hath  such  goods  is  bound  to  restitu- 
tion, and  that  no  custom  may  help  ;  for  they  say  it  is  against 
the  commandment  of  God,  Levit.  19.  where  it  is  commanded, 
that  a  man  shall  love  his  neighbour  as  himself,  and  that  they 
say  he  doth  not  that  taketh  away  his  neighbour's  goods. 
But  they  agree,  that  if  any  man  have  cost  and  labour  for 
the  saving  of  such  goods  wrecked,  specially  for  such  goods 
as  would  perish  it  they  lay  slill  in  the  water,  as  sugar, 
paper,  salt,  meal,  and  such  others,  that  he  ought  to  be  al- 
lowed for  his  costs  and  labour,  but  he  must  restore  the 
goods,  except  he  could  not  save  them  without  putting  his 
life  in  jeopard}'  lor  them  ;  and  then  if  he  put  his  lile  in  such 

Ante.  261. 

%  2  Inst.  166,  167. 

J  Vide  the  statutes  2  Ed.  3,  c.  13;  12  Ann.,  stat.  2,  c.  iS?  confirmed  by  4 
Geo.  1,  c.  12,  and  26  Geo.  2,  c.  19,  which  have  introduced  inanv  humane 
regulations  if  possible  to  prevent  wrecks  at  all. 


266  Doctor  and  Student. 

jeopardy,  and  the  owner  by  common  presumption  had  had 
no  way  to  have  saved  them,  then  it  is  most  commonly  holden 
that  he  may  keep  the  goods  in  conscience.  But  of  other 
goods  that  would  not  so  lightly  perish,  but  that  the  owner 
might  of  common  presumption  save  them  himself,  or  that 
might  be  saved  without  any  peril  of  life,  the  takers  of  them 
be  bound  to  restitution  to  the  owner,'  whether  he  come 
within  the  year,  or  after  the  year. 

And  methinketh  this  case  is  somewhat  like  to  a  case  that 
I  shall  put.  If  there  were  a  law  and  custom  in  this  realm, 
or  if  it  were  ordained  by  statute,  that  if  any  alien  came 
through  the  realm  in  pilgrimage,  and  died,  that  all  his 
goods  should  be  forfeit ;  that  law  should  be  against  con- 
science,.for  there  is  no  cause  reasonable  why  the  said  goods 
should  be  forfeit :  and  no  more  methinketh  there  is  of 
wreck. 

Stud.  There  be  divers  cases  where  a  man  shall  leese 
his  goods,  and  no  default  in  him  :  as  where  beasts  stray 
away  from  a  man,  and  they  be  taken  up,  and  proclaimed, 
and  the  owner  hath  not  heard  of  them  within  the  year  and 
the  day,  though  he  made  sufficient  diligence  to  have  heard 
of  them  ;  yet  the  goods  be  forfeited,  and  no  default  in  him. 
And  so  it  is  where  a  man  killeth  another  with  the  sword  of 
John  at  Stile,  the  sword  shall  be  forfeit  as  a  dcodand,  and 
yet  no  default  is  in  the  owner.*  And  so  methinketh  it  may 
be  in  this  case  ;  and  that  sith  the  Common  law,  before  the 
said  statute,  was,  that  the  goods  wrecked  upon  the  sea  shall 
be  forfeit  to  the  kino;,  that  thev  be  also  forfeited  now  after 
the  statute,  e.xcept  they  be  saved  by  following  the  statute  ;f 
for  the  law  must  needs  reduce  the  properties  of  all  goods  to 
some  man  ;  and  when  the  goods  be  wrecked,  it  seemeth  the 
property  is  in  no  man  :  but  admit  that  the  property  remain 
still  in  the  owner,  then  if  the  owner,  percase,  would  never 
claim,  then  it  should  not  be  known  who  ought  to  have 
them,  and  so  might  they  be  destroyed,  and  no  profit  come 

*i  B.  C.  301. 
f  2  Inst.  166,  167. 


Dialogue  II. — Chap.  51.  267 

of  them  :  wherefore  methinketh  it  reasonable  that  the  law 
shall  appoint  who  ought  to  have  them,  and  that  hath  the 
law  appointed  to  the  king,  as  sovereign  and  head  over  the 
people. 

JDoct.  In  the  cases  that  thou  hast  put  before  of  the  stray 
and  deodand  there  be  considerations  why  they  be  forfeit, 
but  it  is  not  so  here  :*  and  methinketh  that  in  this  case,  it 
were  not  unreasonable  that  the  law  would  suffer  any  man 
that  would  take  them,  to  take  and  keep  them  to  the  use  of 
the  owner,  saving  his  reasonable  expences  ;  and  this  me- 
thinketh were  more  reasonable  law,  than  to  pull  the 
property  out  of  the  owner  without  cause.  But  if  a  man  in 
the  sea  cast  his  goods  out  of  the  ship  as  forsaken,  there 
doctors  hold  that  every  man  may  take  them  lawfully  that 
will  ;f  but  otherwise  it  is  (as  they  say)  if  he  throw  them 
out  for  fear  that  they  should  overcharge  the  ship. 

Stud.  There  is  no  such  law  in  this  realm  of  goods  for- 
saken :  for  though  a  man  waive  the  possession  of  his  goods, 
and  saith  he  forsaketh  them,  yet  by  the  law  of  the  realm 
the  property  remaineth  still  in  him,  and  he  may  seise  them 
after  when  he  will.J  And  if  any  man  in  the  mean  time  put 
the  goods  in  safeguard  to  the  use  of  the  owner,  I  think  he 
doth  lawfully,  and  that  he  shall  be  allowed  lor  his  reason- 
able expences  in  that  behalf,  as  he  shall  be  of  goods  found  ; 
but  he  shall  have  no  property  in  them,  no  more  than  in 
goods  found.  And  I  would  agree,  that  if  a  man  prescribe, 
that  if  he  find  any  goods  within  his  manor,  that  he  should 
have  them  as  his  own,  that  that  prescription  were  void  :§ 
for  there  is  no  consideration  how  the  prescription  might  have 
a  lawful  beginning,  but  in  this  case  methinketh  there  is. 

Doc/.  What  is  that? 

Stud.  It  is  this  :  The  king,  of  the  old  custom  of  the 
realm,  as  the  lord  of  the  narrow  sea,  is  bound,  as  it  is  said, 

*Ante,  no. 

t2B.  C.  9;  i  B.  C.  292. 

J  Ante,  24S. 

§  Br.  Prescription,  pi.  93. 


268  Doctor  and  Student. 

to  scour  the  sea  of  the  pirates  and  petit  robbers  of  the  sea  :* 
and  so  it  is  read  of  the  noble  king  Saint  Edgar  that  he 
would  twice  in  the  year  scour  the  sea  of  such  pirate?  :  but 
I  mean  not  thereby  that  the  king  is  bound  to  conduct  his 
merchants  upon  the  sea  against  all  outward  enemies,  but 
that  he  is  bound  only  to  put  away  such  pirates  and  petit 
robbers.  And  because  that  cannot  be  done  without  great 
charge,  it  is  not  unreasonable  if  he  have  such  goods  as  be 
wrecked  upon  the  sea  toward  the  charge. 

Doct.  Upon  that  reason  I  will  take  a  respite  till  another 
time. 

Chap.  LII. —  The  fifth  question  of  the  doctor,  Whether  it 
stand  -with  conscience  to  -prohibit  a  jury  of  meat  and 
drink  till  they  be  agreed. 

If  one  of  the  twelve  men  of  an  inquest  know  the  very 
truth  of  his  own  knowledge,  and  instructeth  his  fellows 
thereof,  and  they  will  in  no  wise  give  credence  to  him,  and 
thereupon,  because  meat  and  drink  is  prohibited  them,  he 
is  driven  to  that  point,  that  either  he  must  assent  to  them, 
and  give  their  verdict  against  his  own  knowledge  and 
against  his  own  conscience,  or  die  for  lack  of  meat :  how 
may  the  law  then  stand  with  conscience,  that  will  drive  an 
innocent  to  that  extremity,  to  be  either  forsworn,  or  to  be 
famished  and  die  for  want  of  meat? 

Stud.  I  take  not  the  law  of  the  realm  to  be,  that  the  jury 
after  they  be  sworn  may  not  eat  nor  drink  till  they  be  agreed 
of  the  verdict  :|  but  truth  it  is,  there  is  a  maxim  and  an  old 
custom  in  the  law,  that  they  shall  not  eat  nor  drink  after 
they  be  sworn,  till  they  have  given  their  verdict,  without 
the  assent  and  license  of  the  justices.  And  that  is  ordained 
by  the  law  for  eschewing  of  divers  inconveniences  that 
might  follow  thereupon,  and  that  spec. ally  if  they  should 
eat  or  drink  at  the  costs  of  the   parties  ;   and  therefore  if 


:::  Kitchen  on  Courts,  46. 

f  1  Vent.   125;  3  B.  C  375,  376;  Trials  per  Pais,  199,  300. 


Dialogue   II. — Chap.   53.  26a 

they  do  contrary,  it  may  be  laid  in  an  arrest  of  the  iudsr- 
ment  :  but  with  the  assent  of  the  justices  they  may  both  eat 
and  drink.*  As  if  any  of  the  jurors  fall  sick  before  they 
be  agreed  of  their  verdict,  so  sore  that  he  may  not  commune 
of  the  verdict,  then  by  the  assent  of  the  justices  he  may 
have  meat  and  drink,  and  also  such  other  things  as  be  nec- 
essary for  him  :f  and  his  fellows  also  at  their  own  costs,  or 
at  the  'indifferent  costs  of  the  parties,  if  they  so  agree,  or 
by  the  assent  of  the  justices,  may  both  eat  and  drink.J  And 
therefore  if  the  case  happen  that  thou  now  speakest  of,  and 
that  the  jury  can  in  no  wise  agree  in  their  verdict,  and  that 
appeareth  to  the  justices  by  examination,  the  justices  may 
in  that  case  suffer  them  to  have  both  meat  and  drink  for  a 
time,  to  see  whether  they  will  agree  :  and  if  they  will  in  no 
wise  agree,  I  think  that  the  justices  may  set  such  order  in 
the  matter  as  shall  seem  to  them  by  their  discretion  to  stand 
with  reason  and  conscience,  by  awarding  of  a  new  inquest, § 
and  by  setting  fine  upon  them  that  they  shall  find  in  de- 
fault, or  otherwise  as  they  shall  think  best  by  their  discre- 
tion ;  like  as  they  may  do  if  one  of  the  jury  die  before  ver- 
dict, or  if  any  other  like  casualties  fall  in  that  behalf.']  But 
what  the  justices  ought  to  do  in  that  case  that  thou  hast  put, 
in  their  discretion,  I  will  not  treat  of  at  this  time. 

Chap.  LIII. —  The  sixth  question  of  the  doctor,  Whether 
the  colours  that  be  given  at  the  Common  lazv  in  assises, 
actions  of  trespass,  and  divers  other  actions,  stand  with 
conscience,  because  they  be  most  commonly  feigned,  and 
be  not  true. 

Doct.  1  pray  thee  let  me  hear  thy  mind  to  what  intent 
such  colours  be  given,  and  sith  they  be  commonly  untrue, 
how  they  may  stand  with  conscience? 

*2  Haw.  P.  C  146. 

tBr.  Verdict,  pi.  102. 

%  Br.  Jurors,  pi.  51. 

§Noy,  49!  3  Buls.  173;  Vaug.  153. 

||  Vin  Abr.,  title  Trial,  466. 


270  Doctor  and  Student. 

Stud.  The  cause  why  such  colours  be  given  is  this  : 
There  is  a  maxim  and  a  ground  of  the  law  of  England, 
that  if  the  defendant  or  tenant  in  any  action  plead  a  plea 
that  amounteth  to  the  general  issue,  that  he  shall  be  com- 
pelled to  take  the  general  issue  ;*  and  if  he  will  not,  he 
shall  be  condemned  for  lack  of  answer  ;f  and  the  general 
issue  in  assise  is,  that  he  that  is  named  the  disseisor  hath 
done  no  wrong,  nor  no  disseisin  :  and  in  a  writ  oCjEntry 
in  the  nature  of  assise  the  general  issue  is,  that  he  disseised 
him  not ;  and  in  an  action  of  trespass,  that  he  is  not  guilty.  J 
And  so  every  action  hath  his  general  issue  assigned  by  the 
law  :  and  the  tenant  must  of  necessity  either  take  the  gen- 
eral issue,  or  plead  some  plea  in  abatement  of  the  writ,  to 
the  jurisdiction  to  the  party,  or  else  some  bar,  or  some  mat- 
ter by  way  of  conclusion.  And  therefore  if  John  at  Stile 
infeoff  H.  Hart  of  land,  and  a  stranger  bringeth  an  assise 
against  the  said  H.  Hart  for  the  land,  whose  title  he  knoweth 
not ;  in  this  case,  if  he  should  be  compelled  to  plead  to  the 
point  of  the  assise,  that  is  to  say,  that  he  hath  done  no 
wrong,  ne  no  disseisin,  the  matter  should  be  put  to  the 
mouths  of  twelve  laymen,  which  be  not  learned  in  the  law  ;§ 
and  therefore  better  it  is  that  the  law  be  so  ordered,  that  it 
be  put  in  the  determination  of  the  judges,  than  of  laymen. 
And  if  the  said  H.  Hart,  in  the  case  before  rehearsed,  would 
plead  in  bar  of  the  assise,  that  John  at  Stile  was  seised,  and 
infeoffed  him,  by  force  whereof  he  entered,  and  asked  judg- 
ment if  that  assise  should  lie  against  him  ;  that  plea  were 
not.  good,  for  it  amounteth  but  to  the  general  issue,  and 
therefore  he  shall  be  compelled  to  take  the  general  issue, 
or  else  the  assise  shall  be  awarded  against  him  for  lack  of 
answer.  ||  And  therefore  to  the  intent  the  matter  may  be 
shewed  and  pleaded  before  the  judges,  rather  than  before 

*  Co.  Litt.  303;  3  Mod.  166;  Booth  on  Real  Actions,  214. 
f3B.  C  305. 

J  Co-  Litt.  226;  Cro.  Eliz.  257;  Skin.  280;   10  Co.  91 ;  Booth,  214. 
§  Vaugh.  Rep.  150;  Finch  Law,  399;   11  Rep.  10;  9  Rep.  12,  13;   Finch 
Law,  3S1,  382;   Co.  Litt.  226. 
||  Co.  Litt.  303;  3  Mod.  166. 


Dialogue   II. — Chap.  53.  271 


the  jury,  the  tenants  use  to  give  the  plaintiff  a  colour,  that  is 
to  say,  a  colour  of  action,  whereby  it  shall  appear  that  it  were 
hurtful  to  the  tenant  to  put  that  matter  that  he  pleadeth  to  the 
judgment  of  twelve  men  :  and  the  most  common  colour  that 
is  used  in  this  case  is  this  :  When  he  hath  pleaded  that  such 
a  man  infeoffed  him,  as  before  appeareth,  it  is  used  that  he 
shall  plead  farther,  and  say  that  the  plaintiff  claiming  by  a 
colour  of  a  deed  of  feoffment  made  by  the  said  feoffor  be- 
fore the  feoffment  made  to  him,  where  no  right  passed  by 
the  deed,  entered,  upon  whom  he  entered,  and  asked  judg- 
ment if  the  assise  lie  against  him.*  In  this  case,  because  it 
appeareth  to  be  a  doubt  to  unlearned  men,  whether  the  land 
passed  by  the  deed  without  livery  or  not;  therefore  the  law 
suffereth  the  tenant  to  have  that  special  matter  to  bring  the 
matter  to  the  determination  of  the  judges. f  And  in  such 
case  the  judges  may  not  put  the  tenant,  from  the  plea,  for 
they  knew  not  as  judges  but  that  it  is  true  ;  and  so  if  any  de- 
fault be,  it  is  in  the  tenant,  and  not  in  the  court.  And 
though  the  truth  be,  that  there  were  no  such  deed  of  feoff- 
ment made  to  the  plaintiff  as  the  tenant  pleadeth  ;  yet  me- 
thinketh  there  is  no  default  in  the  tenant,  for  he  doth  it  to  a 
good  intent,  as  before  appeareth. 

Doct.  If  the  tenant  know  that  the  feoffor  made  no  such 
deed  of  feoffment  to  the  plaintiff,  then  there  is  a  default  in 
the  tenant  to  plead  it,  for  he  wittingly  saith  against  the  truth  ; 
and  it  is  holden  by  all  doctors,  that  every  lie  is  an  offence, 
more  or  less  ;  for  if  it  be  of  malice,  and  to  the  hurt  of  his 
neighbour,  then  it  is  called  menddcium  -pcrniciosum,  and 
that  is  deadly  sin  ;  and  if  it  be  in  sport,  and  to  the  hurt  of 
no  man,  nor  of  custom  used,  ne  of  pleasure  that  he  hath  in 
lvin^,  then  it  is  venial  sin,  and  it  is  called  in  Latin  menda- 
cium  jocosum :  and  if  it  be  to  the  profit  of  his  neighbour, 
and  to  the  hurt  of  no  man,  then  it  is  also  venial  sin,  and  it 
is  called  in  Latin  mendacium  officiosum;  and  thought  it  be 

*3  B.C.  309. 

f  10  Rep.  89,  90;  Finch  Law,  3S2. 


272  Doctor  and  Student. 

the  least  of  those  three,  yet  it  is  a  venial  sin,  and  would  be 
eschewed. 

Stud.  Though  the  midwives  of  Egypt  lied  when  they 
had  reserved  the  male-children  of  the  Hebrews,  saying  to 
the  king  Pharaoh,  that  the  Hebrews  had  women  that  were 
cunning  in  the  same  craft,  which  ere  they  came  had  re- 
served the  children  alive,  where  indeed  they  themselves  of 
pity,  and  of  dread  of  God  reserved  them  ;  yet  Saint  Hierome 
expounded  the  text  following,  which  saith,  that  our  L,ord 
therefore  gave  them  houses,  that  is  to  be  understood  that 
he  gave  them  spiritual  houses,  and  that  they  had  therefore 
eternal  reward  :  and  if  they  sinned  by  that  lie,  although  it 
were  but  venial,  yet  I  cannot  see  how  they  should  have 
therefore  eternal  reward.  And  also  if  a  man  intending  to 
slay  another,  ask  me  where  that  man  is  ;  is  it  not  better  for 
me  to  lie,  and  say  I  cannot  tell  where  he  is,  though  I  know 
it,  than  to  shew  where  he  is,  whereupon  murther  should 
follow  ? 

Doct.  The  deed  that  the  midwives  of  Egypt  did  in  saving 
the  children  was  meritorious,  and  deserved  reward  ever- 
lasting, if  they  believed  in  God,  and  did  good  deeds  beside, 
as  it  is  to  suppose  they  did,  when  they  for  the  love  of  God 
refused  the  death  of  the  innocents:  and  then,  though  they 
made  a  lie  after,  which  was  but  venial  sin,  that  could  not 
take  from  them  their  reward,  for  a  venial  sin  doth  not 
utterly  extinct  charity,  but  letteth  the  fervour  thereof:  and 
therefore  it  may  well  stand  with  the  words  of  Saint  Hie- 
rome, that  they  had  for  their  good  deed  eternal  houses,  and 
yet  the  lie  that  they  made  to  be  a  venial  sin.  But  never- 
theless, if  such  a  lie  that  is  of  itself  but  venial,  be  affirmed 
with  an  oath,  it  is  always  mortal,  if  he  know  it  to  be  false 
that  he  sweareth.  And  to  the  other  question,  it  is  not  like 
to  this  question  that  we  have  in  hand,  as  me  seemeth  :  for 
sometime  a  man  for  the  eschewing  of  the  greater  evil  may 
do  a  less  evil,  and  then  the  less  is  no  offence  in  him  ;  and 
so  it  is  in  the  case  that  thou  hast  put,  wherein  because  it  is 
less  offence  to  say  he  woteth  not  where  he  is,  though  he 
know  where  he  is,  than  it  is  to  shew  where  he  is,  where- 


Dialogue   II. — Chap.   $3.  2yn 

upon  murther  should  follow,  it  is  therefore  no  sin  to  say  he 
woteth  not  where  he  is  :  for  every  man  is  bound  to  love  his 
neighbour,  and  if  he  shew  in  this  case  where  he  is,  know- 
ing his  death  should  follow  thereupon,  it  seemeth  that  he 
loved    him  not,  ne  that  he  did  not  to  him  as  he  would  be 
done  to.     But  in   the  case  that  we  be  in  here,  there  is  no 
such  sin  eschewed  :  for  though  the  party  pleadeth  the  gen- 
eral issue,  the  jury  might  find  the  truth  in  every  thing  ;  and 
.  therefore  in   that  he  saith  that  the  plaintiff,  claiming  it  by 
the   colour  of  a   deed  of  feoffment,  where   nought  passed, 
entered,  etc.,  knowing  that  there  was  no  such  feoffment,  it 
was  a  lie  in   him,  and  a  venial  sin,  as  methinketh.     And 
every  man  is  bound  to  suffer  a  deadly  sin  in  his  neighbour, 
rather  than  a  venial  sin  in  himself 

Stud.  Though  the  jury  upon  a  general   issue  may  find 
the  truth,  as  thou  sayest,  yet  it  is  much  more  dangerous  to 
the  jury  to  inquire  of  many  points,  than  to  inquire  only  of 
one  point.*     And   forasmuch   as   our  Lord   hath   given   a 
commandment  to  every  man  upon  his  neighbour;  therefore 
every  man  is  bound  to  foresee  as  much  as  in  him  is,  tha* 
by    him    no   occasion    of  offence   come   to    his   neighbour. 
And    for   the    same    cause    the   law   hath   ordained    divers 
maxims  and  principles,  whereby  issue  in  the  king's  court 
may  be  joined  upon  one  point  in  certain,  as  nigh  as  may  be, 
■and    not    generally,    lest    offence   might    follow   thereupon 
against  God,  and  a  hurt  also  unto  the  jury.      Wherefore  it 
seemeth  that  he  loveth  not  his  neighbour  as  himself,  ne 
that  he  doth  not  as  he  would  be  done  to,  that  offereth  such 
danger  to  his  neighbour,  where  he   may  well  and  conveni- 
ently keep  it  from   him,  if  he  will  follow  the  order  of  the 
law;    and   it  seemeth    that    he  putteth   himself  wilfully  in 
jeopardy  that  doth  it,  as  it  is  written,  Eccles.  3,  Qui  amat 
fcriculum   in   Mo  f  crib  it,  that   is   to  say,  he   that   loveth 
peril  shall  perish  in  it,  and  he  that  putteth  his  neighbour  in 
peril  to  offend,  putteth  himself  in  the  same,  and  so  should 

*9  Rep.  12. 
18 


274  Doctor   and   Student. 

he  do,  me  seemeth,  that  would  wilfully  take  the  general 
issue,  where  he  might  conveniently  have  the  special  matter. 
And  furthermore,  it  is  no  offence  in  princes  and  rulers  to 
suffer  contracts,  and  buying  and  selling  in  markets  and 
fairs,  though  both  perjury  and  deceit  should  follow  there- 
upon ;  because  such  contracts  be  necessary  for  the  common- 
wealth :  so  it  seemeth  likewise,  that  there  is  no  default  in 
the  party  that  pleadeth  such  a  special  matter,  to  avoid  from 
his  neighbour  the  danger  of  perjury,  ne  }^et  in  the  court,  . 
though  they  induce  him  to  it,  as  they  do  sometime  for  the 
intent  before  rehearsed.  And  in  like  wise  some  will  say, 
that  if  rulers  of  cities  and  commonalties  sometime  for  the 
punishment  of  felons,  murtherers,  and  such  other  offenders, 
will  (to  the  intent  they  would  have  them  confess  the  truth) 
say  to  them  that  be  suspected,  that  they  be  informed  of 
such  certain  defaults  or  misdemeanors  in  the  offenders,  and 
that  they  do  to  the  intent  to  have  them  confess  the  truth, 
that  though  they  were  not  so  informed,  that  yet  it  is  no 
offence  to  say  they  were  so  informed,  because  they  do  it 
for  the  commonwealth  :  for  if  offenders  were  suffered  to  go 
unpunished,  the  commonwealth  would  eftsoons  decay  and 
utterly  perish. 

Doct.  I  will  take  advisement  upon  thy  reason  in  this 
matter  till  another  season,  and  I  will  now  ask  thee  another 
question  somewhat  like  unto  this  :  I  pray  thee  let  me  hear, 
thy  mind  therein. 

Stud,  Let  me  hear  thy  question,  and  I  shall  with  good- 
will say  as  I  think  therein. 

Chap.  L1V. —  1 he  seventh  question  of  the  docto?',  con- 
cerning the  pleadings  in  assise,  whereby  the  tenants  use 
sometime  to  plead  in  such  manner  that  they  shall  confess 
no  ouster. 

Doct.  It  is  commonly  used,  as  I  have  heard  say,  that 
when  a  tenant  in  assise  pleadeth  that  a  stranger  was  seised 
and  enfeoffed  him,  and  giveth  the  plaintiff  a  colour  in  such 


Dialogue   II.— Chap.  54.  275 

manner  as  before  appeareth  in  the  520!  chapter,*  that  the 
tenant  many  times,  when  he  hath  pleaded  thus,  and  the 
plaintiff  claimed  by  a  colour  of  a  deed  of  feoffment  made  by 
the  said  stranger,  where  nought  passed  by  the  deed  entered  ; 
and  that  then  they  use  to  say  farther,  upon  whom  A.  B. 
entered,  upon  whom  the  tenant  entered  ;  where  indeed  the 
said  A.  B.  never  entered,  ne  haply  there  was  no  such  man  ; 
how  can  this  pleading  be  excused  of  an  untruth?  And 
what  reasonable  cause  can  be  why  such  a  pleading  should 
be  suffered  against  the  truth? 

Stud.  The  cause  why  that  manner  of  pleading  is  suffered 
is  this  :  if  the  tenant  by  his  pleading  confessed  an  immediate 
entry  upon  the  plaintiff,  or  an  immediate  putting  out  of  the 
plaintiff",  which  in  French  is  called  an  Ouster;  then  if  the 
title  were  after  found  for  the  plaintiff,  the  tenant  by  his 
confession  were  attainted  of  the  disseisin.  And  because  it 
may  be,  that  though  the  plaintiff  have  good  title  to  the 
land,  that  yet  the  tenant  is  no  disseisor,  therefore  the  ten- 
ants use  many  times  to  plead  in  such  manner  as  thou  hast 
said  before,  to  save  themselves  from  confessing  of  an  ouster  : 
and  so  if  there  be  any  default  it  is  not  in  the  court,  ne  in 
the  law,  for  they  know  not  the  truth  therein  till  it  be  tried. 
And  methinketh  also  that  there  is  in  this  case  right  little 
default  or  none  in  the  tenant,  nor  in  his  counsel,  specially 
if  the  counsel  know  that  the  tenant  is  no  disseisor.  But  as 
to  that  point,  I  pray  thee,  that  as  thou  hast  taken  a  respite 
to  be  advised,  or  that  thou  shew  thy  full  mind  in  the  ques- 
tion of  a  colour  given  in  assise,  whereof  mention  is  made  in 
the  said  48th  chapter,  that  I  likewise  may  have  a  like 
respite  in  this  case  till  another  time,  to  be  advised,  and  then 
I  shall  with  good-will  shew  thee  my  full  mind  therein. 

Doct.  I  am  content  it  be  as  thou  sayest.  But  I  pray 
thee  that  I  may  yet  add  another  question  to  the  two  ques- 
tions before  rehearsed  of  colours  in  assise,  and  feel  thv 
mind  therein,  because  that  soundeth  much  to  the  same  effect 
that  the  other  do,  (that  is  to  say)   to  prove  that  there  be 

*  Ante,  271. 


276  Doctor  and  Student. 

divers  things  suffered  in  the  law  to  be  pleaded  that  be 
against  the  truth  :  and  I  pray  thee  let  me  hereafter  know 
thy  mind  in  all  three  questions,  and  thou  shalt  then  with  a 
good-will  know  mine. 

Stud.  I  pray  thee  shew  me  the  case  that  thou  speakest  of. 

Doct.  If  a  man  steal  a  horse  secretly  in  the  night,  it  is 
used  that  thereupon  he  shall  be  indicted  at  the  king's  suit, 
and  it  is  used  that  in  that  indictment  it  shall  be  supposed 
that  he  such  a  day  and  place  with  force  and  arms,  (that  is 
to  say)  with  staves,  swords,  and  knives,  etc.,  feloniously 
stole  the  horse  against  the  king's  peace  ;  and  that  form  must 
be  kept  in  every  indictment,  though  the  felon  had  neither 
sword  nor  other  weapon  with  him,  but  that  he  came  secretly 
without  weapon  :*  how  can  it  therefore  be  excused,  but  there 
is  an  untruth  ? 

Stud.  It  is  not  alledged  in  the  indictment  by  matter  in 
deed  that  he  had  such  weapon,  for  the  form  of  an  indict- 
ment is  this  : 

Inquiratur  -pro  Domino  JRcgc,  si  A,  tali  die  ct  anno  aptid 
talem  locum  vi ct  armis, videlicet  Gladiis,  etc.,  talem  equum 
talis  hominis  ccfiit,  etc. 

And  then  the  twelve  men  be  only  charged  with  the  effect 
of  the  bill,  that  is  to  say,  whether  he  be  guilty  of  the  felony 
or  not,  and  not  whether  he  be  guilty  under  such  manner 
and  form  as  the  bill  specifieth  or  not  ;f  and  so  when  they 
say  Billa  vera,  they  say  true,  as  they  take  the  effect  of 
the  bill  to  be.  And  therefore  if  there  were  false  Latin  in 
the  bill  of  indictment,  and  the  jury  saith  Billa  vera,  yet 
their  verdict  is  true  :  for  their  verdict  stretcheth  not  to  the 
truth  or  falshood  of  the  Latin,  but  to  the  felony,  ne  to  the 

*But  by  statute  37  H.  8,  c.  8,  it  is  enacted,  that  these  words,  vi  et  armis, 
viz.,  baculis,  cultellis  arcnbus,  etsagittis,  or  such  like,  shall  not  of  necessity 
be  put  in  any  indictment,  nor  shall  the  parties  indicted  of  any  offence  have 
any  advantage  by  writ  of  error,  plea,  or  otherwise,  to  avoid  any  such  in- 
dictment for  the  want  of  these  or  the  like  words,  but  that  the  same  lacking 
of  the  said  words  shall  be  as  good  in  law  as  indictments  having  them.  And 
see  2  Hawk.  P.  C.  241,  242,  and  the  authorities  cited  in  the  margin. 

t4B.  C.  301. 


Dialogue   II. — Chap.   54.  277 

form  of  the  words,  but  to  the  effect  of  the  matter;  and  that 
is  to  enquire  whether  there  were  any  such  felony  done  by 
the  person  or  not.*  And  though  the  bill  vary  from  the  day, 
from  the  year,  and  also  from  the  place  where  the  felony  was 
done  in,  so  it  vary  not  from  the  shire  that  the  felony  was 
done  in,  and  the  jury  saith  Billa  vera,  they  have  given 
a  true  verdict ;f  for  they  are  bound  by  their  oath  to  give 
their  verdict  according  to  the  effect  of  the  bill,  and  not  ac- 
cordinc  to  the  form  of  the  bill.  And  so  is  he  that  maketh 
a  vow  bound  likewise  to  that  that  by  the  law  is  the  effect  of 
his  avow,  and  not  only  to  the  words  of  his  avow.  And  if 
a  man  avow  never  to  eat  white  meat,  yet  in  time  of  extreme 
necessity  he  may  eat  white  meat,  rather  than  die,  and  not 
break  his  avow,  though  he  affirmed  it  with  an  oath  :  for  by 
the  effect  of  his  avow  extreme  necessity  was  excepted, 
though  it  were  not  expressly  excepted  in  the  words  ot  the 
avow.  And  so  likewise,  though  the  words  of  the  bill  be, 
to  enquire  whether  such  a  man  such  a  day  and  year,  and  in 
such  a  place,  did  such  a  felony  ;  yet  the  effect  of  the  bill  is, 
to  enquire  whether  he  did  the  felony  within  the  shire  or  no  : 
and  therefore  the  justices  before  whom  such  indictments  be 
taken  most  commonly  inform  the  jury,  that  they  are  bound 
to  regard  the  effect  of  the  bill,  and  not  the  form.  And 
therefore  there  is  no  untruth  in  this  case,  neither  in  him  that 
made  the  bill,  ne  yet  in  the  jury,  as  me  seemeth. 

Doct.  But  if  the  party  that  owned  the  horse  bring  an 
action  of  trespass  ;  and  declareth  that  the  defendant  took 
the  horse  with  force  and  arms,  where  he  took  him  without 
force  and  arms  ;  how  may  the  plaintiff  there  be  excused  of 
an  untruth. 

SIikL  And  if  the  plaintiff  surmise  an  untruth,  what  is 
that  to  the  court,  or  to  the  law?  For  they  must  believe  the 
plaintiff,  till  that  that  he  saith  be  denied  by  the  defendant; 
and  yet  as  this  case  is,  there  is  no  untruth  in  the  plaintiff,  to 
say  he  took  the  horse  with  force  and  arms,  though  he  came 

*  2  H.  P.  c.  237. 
t4  B.C.  302. 


278  Doctor  and  Student. 

never  so  secretly,  and  without  weapon  :  for  every  trespass 
is  in  the  law  done  with  force  and  arms;*  so  that  if  lie  be 
attainted,  and  found  guilty  of  the  trespass,  he  is  attainted  of 
the  iorce  and  arms  :  and  sith  the  law  judgeth  every  trespass 
to  be  done  with  force,  therefore  the  plaintiff  saith  truly  that 
lie  took  h  m  with  force,  as  the  law  meaneth  to  be  force. 
For  though  he  took  the  horse  as  a  felon,  yet  upon  the  felo- 
nious taking  the  owner  may  take  an  action  of  trespass  if  he 
will  ;f  for  every  felony  is  a  trespass  and  more. J  And  so  I 
have  shewed  thee  some  part  of  my  mind,  to  prove  that  in 
those  cases  there  is  no  untruth,  neither  in  the  parties, 
neither  in  the  jury,  nor  in  the  law.  Nevertheless,  at  a  bet- 
ter leisure  I  will  shew  thee  my  mind  more  full}'  therein  with 
good-will,  as  thou  hast  promised  me  to  do  in  the  case  of 
colours  of  the  assise,  and  of  the  ouster,  that  be  before  re- 
hearsed. 

Chap.  LV. —  The  eighth  question  of  the  doctor,  Whether 
the  statute  of  forty-five  of  Edzuard  the  third,  of  Sylva 
ccedua,  stand  with  conscience. 

Doct.  In  the  45th  }rear  of  the  reign  of  Edw.  III.  §  it  was 
enacted,  That  a  prohibition  should  lie  where  a  man  is  im- 
pleaded in  the  court-christian  for  dismes  of  wood  of  the  age 
of  twenty  years  or  above,  by  the  name  of  Sylva  ccedua,\\ 
how  may  that  statute  stand  with  conscience,  that  is  so  di- 
rectly against  the  liberty  of  the'  church,  and  that  is  made 
of  such  things  as  the  parliament  had  no  authority  to  make 
any  law  of? 

is  not  true,  for  the  taw  does  not  consider  every  trespass  to  be  done 
with  force.      For  instance,  that  species  of  injury  which  maybe  proper!/, 
nominated  a  trespass,  and  which  subjects  the  wrong-doer  to  what  we  call 
an    acton   upon   the  case,    is   not  accompanied   with    Iorce.      5  Bac.  Abr., 
title  Trespass. 

1  Or  it  6eems  that  lie  may  have  an  action  of  trover,  after  the  offender  is 
prosei  ui'. I.      1  Black.  Com.  356;   1  Hale  P.  C.  546. 

i  '■ 
§  Cap.  .5. 
U  Ante,  93. 


Dialogue   II. — Chap.   55.  279 


Stud.  It  appeareth  in  the  said  statute,*  that  it  is  enacted, 
That  a  prohibition  should  lie  in  that  case  as  it  had  used  to 
do  before  that  time  ;  and  if  the  prohibition  lay  by  a  pre- 
scription before  the  statute,  why  is  not  then  the  statute  good 
as  a  confirmation  of  that  prescription? 

Doc/.  1 1  there  were  such  a  prescription  before  the  stat- 
ute, that  prescription  was  void ;  for  it  prohibiteth  the  pay- 
ment of  tithes  of  trees  of  the  age  of  twenty  years  or  above  ; 
and  paying  of  tithes  is  grounded  as  well  upon  the  law  of 
God,  as  upon  the  law  of  reason  ;  and  against  those  laws 
lieth  no  prescription,  as  it  is  holden  most  commonly  by  all 
men. 

Stud.  That  there  was  such  a  prescription  before  the  said 
statute, «and  that  it'  a  man  before  the  said  statute  bad  been 
sued  in  the  spiritual  court  for  tithes  of  wood  of  the  age  of 
twenty  years  or  above,  the  prohibition  lay,  appeareth  in  the 
said  statute,  and  it  can  not  be  thought  that  a  statute  that  is 
made  by  authority  of  the  whole  realm,  as  well  of  the  king, 
and  of  the  lords  spiritual  and  temporal,  as  of  all  the  com- 
mons, will  recite  a  thing  against  the  truth.  And  further- 
more, I  cannot  see  how  it  can  be  grounded  by  the  law  of 
God,  or  by  the  law  of  reason,  that  the  tenth  part  should  be 
paid  tor  tithe,  and  no.  other  portion  but  that  :  but  I  think 
that  it  be  grounded  upon  the  law  of  reason,  that  a  man 
should  give  a  reasonable  portion  of  his  goods  temporal  to 
them  that  minister  to  him  things  spiritual  ;  for  every  man  is 
bound  to  honour  God  of  his  proper  substance;  and  the 
giving  ot  such  portion  hath  not  been  only  used  among 
faithful  people,  but  also  among  unfaithful,  as  it  appeareth, 
Genesis  47,  where  corn  was  given  to  the  p  vpt 

of  common  barns.  And  Saint  Paul  in  his  epistles  affirn 
the  same  in  many  places;  as  in  his  lust  epistle  to  the  C  - 
inthians,  can.  q.  where  he  saith,  "  He  that  worketh  in  the 
church  .shall  eat  of  that  that  belongeth  to  the  church  :"  and 
in  his  epistle  to  the  Galatians,  chap.  0,  he  saith,  "  Let  him 
that  is  instructed  in  spiritual   things,  depart  (<i   his  goods  to 


2  Inst.  C43. 


280  Doctor  and  Student. 

him  that  instructeth  him."  And  Saint  Luke,  chap.  10, 
saith,  "  TY.at  the  workman  is  worthy  to  have  his  hire.'' 
All  which  sayings  may  right  conveniently  be  taken  and  ap- 
plied to  this  purpose,  that  spiritual  men,  which  minister  to 
the  people  spiritual  things,  ought  tor  their  ministration  to 
have  a  competent  living  of  them  that  they  minister  unto. 
But  that  the  tenth  part  should  be  assigned  for  such  a  por- 
tion, and  neither  more  nor  less,  I  cannot  perceive  that  that 
should  be  grounded  by  the  law  of  reason,  nor  immediately 
by  the  law  of  God.  For  before  the  law  written  there  was 
no  certain  portion  assigned  for  the  spiritual  ministers, 
neither  the  tenth  part,  nor  the  twelfth  part,  unto  the  time 
of  Jacob  :  for  it  appeareth,  Genesis  28,  that  Jacob  avowed 
to  pay  dismes,  which  was  among  the  Jews  for  the  tenth 
part,  if  our  Lord  prospered  him  in  his  journey  ;  and  if  the 
tenth  part  had  been  his  duty  before  that  avow,  it  had  been 
in  vain  to  have  avowed  it,  and  so  it  had  if  it  had  been 
grounded  by  the  law  of  reason.  And  as  to  that  js  spoken 
in  the  evangelists,  and  in  the  new  law,  of  tithes  it  belongeth 
rather  to  the  giving  of  tithes  in  the  time  of  the  old  law,  than 
of  the  new  law  ;  as  it  appeareth,  Matth.  23,  and  Luke  11, 
where  our  Lord  speaketh  to  the  Pharisees,  saying,  "  Wo 
to  you  Pharisees,  that  tithe  mints,  rue,  and  herbs,  and  for- 
get the  judgment  and  the  charity  of  God  ;  these  it  behoveth 
you  to  do,  and  the  other  not  to  omit :"  that  is  to  say,  it  be- 
hoveth you  to  do  justice  and  charity  of  God,  and  not  to 
omit  paying  of  tithes,  though  it  be  of  small  things,  as  of 
mints,  rue,  herbs,  and  such  other.  And  also  that  the 
Pharisee  saith,  Luke  17,  "  I  pay  my  tythes  for  all  that  I 
have,"  it  is  to  be  referred  to  the  old  law,  not  to  the  time  of 
the  new  law;  therefore,  as  I  take  it,  the  paying  of  tithes, 
or  of  a  certain  portion  to  spiritual  men  for  their  spiritual 
ministration  to  the  people,  have  been  grounded  in  divers 
manners.  First,  before  the  law  written,  a  certain  portion 
sufficient  for  the  spiritual  ministers  was  due  to  them  by  the 
law  of  nature,  which,  after  them  that  be  learned  in  the  law 
of  the  realm,  is  called  the  law  of  reason  ;  and  that  portion 
is  due  by  all  laws.     And  in  the  law  written,  the  Jews  were 


Dialogue   II. — Chap.   55.  281 


bound  to  give  the  tenth  part  to  their  priests,  as  well  by  the 
said  avow  of  Jacob,  as  by  the  law  of  God  in  the  Old  Testa- 
ment, called  the  Judicials.  And  in  the  new  law  the  pay- 
ing of  the  tenth  part  is  by  a  law  that  is  made  by  the  church. 
And  the  reason  wherefore  the  tenth  part  was  ordained  by 
the  church  to  be  payed  for  the  tithe  was  this  :  There  is  no 
cause  why  the  people  of  the  new  law  ought  to  pay  less  to 
the  ministers  of  the  new  law,  than  the  people  of  the  Old 
Testament  gave  to  the  ministers  of  die  Old  Testament :  for 
the  people  of  the  new  law  be  bound  to  greater  things  than 
the  people  of  the  old  law  were,  as  it  appeareth,  Matth.  5, 
where  it  is  said,  "  Unless  your  good  works  abound  above 
the  works  of  the  Scribes  and  Pharisees,  ye  may  not  enter 
into  the  kingdom  of  heaven."  And  the  sacrifice  of  t'.ie  old 
law  was  not  so  honourable  as  the  sacrifice  of  the  new  law 
is  :  for  the  sacrifice  of  the  old  law  was  only  the  figure,  and 
the  sacrifice  of  the  new  law  is  the  tiling  that  is  figured  ; 
that  was  the  shadow,  this  is  the  truth.  And  therefore  the 
church  upon  that  reasonable  consideration  ordained,  that 
the  tenth  part  should  be  paid  for  the  sustenance  of  the  min- 
isters in  the  new  law,  as  it  was  for  the  sustenance  of  the 
ministers  in  the  old  law  ;  and  so  that  law  with  a  cause  may 
be  increased  or  diminished  to  more  portion  or  to  less,  as 
shall  be  necessary  for  them. 

Docl.  It  appeareth,  Gen.  14,  that  Abraham  gave  to  Mel- 
chisedec  dismes,  and  that  is  taken  to  be  the  tenth  part ;  and 
that  was  long  before  the  law  written  :  and  therefore  it  is  to 
suppose,  that  he  did  that  by  the  law  of  God. 

Stud.  It  appeareth  not  by  any  scripture  that  he  did  that 
by  the  commandment  of  God,  ne  by  any  revelation.  And 
therefore  it  is  rather  to  suppose  that  he  did  part  of  duty,  and 
part  ot  his  own  free  will  :  for  in  that  he  gave  the  dismes  as 
a  reasonable  portion  for  the  sustenance  of  Melchisedec  and 
his  ministers,  he  did  it  by  the  commandment  of  the  law  of 
reason,  as  before  appeareth  ;  but  that  he  gave  the  tenth 
part,  that  was  of  his  free-will,  and  because  he  thought  it 
sufficient  and  reasonable  :  but  if  he  had  thought  the  twelfth 
pait,   or  the   thirteenth  part    had    sufficed,    he    might   have 


282  Doctor  and  Student. 

given  it,  and  that  with  good  conscience.  And  so  I  suppose 
that  in  the  new  law,  the  giving  of  the  tenth  part  is  by  the 
law  of  the  church,  and  not  by  the  law  of  God  :  unless  it  be 
taken  that  the  law  of  the  church  is  the  law  of  God,  as  it  is 
sometime  taken  to  be,  but  not  appropriately  or  immediately  ;. 
for  that  is  taken  appropriately  to  be  the  law  of  God,  that  is 
contained  in  scripture,  that  is  to  say,  in  the  Old  Testament 
and  in  the  New. 

Doc/.  It  is  somewhat  dangerous  to  say  that  tithes  be 
grounded  only  upon  the  law  of  the  church  :  for  some  men, 
as  it  is  said,  sa}r  that  men's  law  bindeth  not  in  conscience, 
and  so  the}-  might  happen  to  make  a  boldness  thereby  to 
den)'  their  tithes. 

Stud.  I  trust  there  be  none  of  that  opinion  ;  and  if  there 
be,  it  is  great  pity  :  and  nevertheless  they  be  compelled  in 
that  case  by  the  law  of  the  church  to  pay  their  tithes,  as 
well  as  they  should  be  if  paying  of  tithes  were  grounded 
merely  upon  the  law  of  God. 

Doct.  I  think  well  it  be  as  thou  sayest,  and  therefore  I 
hold  me  contented  therein.  But  I  pray  thee  shew  me  thy 
mind  in  this  question  :  if  a  whole  country  prescribe  to  pay 
no  tith.es  for  corn  or  hay,  nor  such  other,  whether  thou 
think  that  that  prescription  is  good? 

Stud.  That  question  dependelh  much  upon  that  that  is 
said  before  :  for  if  paying  of  the  tenth  part  be  by  the  law 
of  reason,  or  by  the  law  of  God,  then  the  prescription  is 
void  ;  but  if  it  be  by  the  law  of  man,  then  it  is  a  good  pre- 
scription, so  that  the  ministers  have  a  sufficient  portion  be- 
side. 

Doct.  John  Gerson,  which,  was  a  doctor  of  divinity,  in  a 
treatise  that  he  named  Rcgulce  morales,  saith,  that  dismes 
be  paid  to  priests  by  the  law  ot    God. 

Stud.  The  words  that  In-  speaketh  there  of  the  matter  be 
these,  Solutio  dccimarum  sacerdotibus  est  de  jure  divino, 
quatenus  hide  sustententur ;  sed  quod  tarn  hanc  vel  Mam 
assignare,  aut  in  alios  redditus  commutare*  -positivi  juris 
existit:  that  is  thus  much  to  say,  The  paying  of  dismes  to 
priests  is  of  the  law  of  God,  that  they  may  thereby  be  sus- 


Dialogue  II. — Chap.  55.  .  283 


tained  ;  but  to  assign  this  portion  or  that,  or  to  change  it  to 
other  rents,  that  is  by  the  law  positive.     And  if  it  should 
be  taken  that  by  that  word  decimarum  which  in   English  is 
called   dismes  or  tithes,  that  he  meant  the  10th  part,  and 
that  that  10th   part  should  be  paid  for  tithe  by  the   law  of 
God,  then  is  the  sentence  that  followeth  after  against  that 
saying:  for  as  it  appeareth  above,  the  next  saith  afterward 
thus  ;   but  to  assign  this  portion  or  that,  or  to  change  it  into 
other  rents,  belongeth  to  the  law  positive,  that  is  to  the  law 
of  man  ;  and  if  the  tenth  part  were  assigned  by  God,  then 
may  n  >t  a  less  part  be  assigned  by  the  law  of  man,  for  that 
should  be  contrary  to  the  law  of  God,  and  so  it  should  be 
void.     And  methinketh  that  it  is  not  so  likely  that  so  famous 
a  clerk  would  speak  any  sentence   contrary  to  the  law  of 
God  or  contrary  to  that  he  had  spoken  before.     And  to  prove 
he  meant  not  by  the  term  dccinicc,  that  dismes  should  always 
'  be  taken  lor  the   tenth   part,  it  appeareth  in  the  fourth  part 
of  his  works,  i  1   the  33d   title  Ltterce,  where  he  saith  thus. 
JYon    vacatur  pari  so   curat  is  del)  it  a  propterea  decimee,    co 
quod  semper  sit  decima  pars,   imo  est  interdum  viccsima 
out  tricesiiua :   that  is  to   say,  the   portion  due  to  curates  is 
not  therefore  called  dismes,  for  that  it  is  alway  the  tenth  part, 
for  sometime    it  is   the   20th  or  the   30th    part.      And    so   it 
appeareth  that  by  this  word  decimarum  he  meant  in  the  text 
before  rehearsed   a   certain  portion,   and   not  precisely   the 
tenth  part :  ami  that  the  portion  should  be  paid  to  priests  by 
the  law  of  God,  to  sustain  them  with,  taking  as  it  seemeth 
the  law  of  reason   in  that  saving   for  the   law  of  God,  as  it 
may  one  way  be  well  and   conveniently  taken,  because  the 
law  ot  reason  is  given  to  every  reasonable  creature  by  God  : 
ami  then  it  followeth  pursuantly,  that  it  belongeth  to  the  law 
of  man  to  assign  this  portion,  or  that  which  necessity  shall 
require  lor  their  sustenance.     And  then  his  saying  agreeth 
well  to  that  that  is  said   before,  that  is  to  .say,  that  a  certain 
portion  is  cue  for  priests,  for  their  spiritual  ministration,  by 
the   law  ot   reason.      And   then   it  would   follow  thereupon, 
that  if  ii  were  ordained  lor  a  law,  that   all   paying  ol   tithes 
should  from  henceforth  cease,  and  that  every  curate  should 


284  Doctor   and   Student. 

have  assigned  to  him  such  certain  portion  of  land,  rent,  or 
annuity,  as  should  be  sufficient  for  him,  and  for  such  min- 
isters as  should  be  necessary  to  be  under  him,  accord- 
ing to  the  number  of  the  people  there,  or  that  every 
parishioner  or  householder  should  give  a  certain  sum  of 
money  to  that  use;  I  suppose  the  law  were  good.  And 
that  was  the  meaning  of  John  Gerson  as  it  seemeth,  in  his 
words  before  rehearsed,  where  he  saith.  But  to  change 
tithes  into  other  rents,  is  by  the  law  positive,  that  is  to  say, 
by  the  law  of  man.  And  some  think  that  if  a  whole  coun- 
try prescribe  to  be  quit  of  both  tithes  of  corn  and  grass,  so 
that  the  spiritual  ministers  have  a  sufficient  portion  beside  to 
live  upon,  that  is  a  good  prescription,  and  that  they  should 
not  offend  that  in  such  countries  paid  no  tithes  ;*  for  it  were 
hard  to  say  that  all  the  men  of  Italy,  or  of  the  East  parts 
be  damned,  because  they  pay  no  tithes,  but  a  certain  portion 
after  the  custom.  Therefore  certain  it  is  to  pay  such  a  cer- 
tain portion,  as  well  they  as  all  other  be  bound,  if  the 
church  ask  it,  anv  custom  notwithstanding.  But  if  the 
church  ask  it  not,  it  seemeth  that  by  that  not  asking  the 
church  remitteth  it ;  and  an  example  thereof  we  may  take 
of  the  Apostle  Paul,  that  though  he  might  have  taken  his 
necessary  living  of  them  that  he  preached  to,  yet  he  took  it 
not,  and  nevertheless  they  that  gave  it  him  not,  did  not  of- 
fend, because  he  did  not  ask  it.  But  if  one  man  in  a  town 
would  prescribe  to  be  discharged  of  tithes  of  corn  and 
grass,  methinketh  the  prescription  is  not  good,  unless  he 
can  prove  that  he  recompenseth  it  in  another  thing  :f  for  it 
seemeth  not  reasonable  that  he  should  pay  less  for  his  tithes 
than  his  neighbours  do,  seeing  that  the  spiritual  ministers 
are  bound  to  take  as  much  diligence  for  him,  as  they  be 
for  any  other  of  that  parish  :%  wherefore  it  might  stand  with 
reason  that  he  should  be  compelled  to  pay  his  tithes  as  his 
neighbours  do,  unless  he  can  prove  that  he  payeth  in  rec- 
ompence  thereof  more  than  the  tenth  part  in  another  thing. 

*3  Burn's  Eel.  Law,  400;  2  Inst.  645;  Br.  Dismes,  14. 
t3  Burn's  Eel.  Law,  397. 
.;  Dr.  Pre  cription,  pi.  93. 


Dialogue   II. — Chap.  55.  285 

Nevertheless,  I  leave  the  matter  to  the  judgment  of  others. 
And  then  for  a  farther  proof,  though  the  said  prescription 
of  not  paying  tithes  for  trees  of  twenty  years  and  above 
were  not  good,  yet  that  that  of  corn  and  grass  should  begood 
some  make  this  reason  ;  they  say  that  there  is  no  tithe  but 
it  is  either  a  predial  tithe,  or  a  personal  tithe,  or  a  mixt 
tithe.  And  they  say  that  if  a  tithe  should  be  paid  of  trees 
when  they  be  sold,  that  the  tithe  were  not  a  predial  tithe  ;* 
for  the  predial  tithe  of  trees  is  of  such  trees  as  bring  forth 
fruits  and  increase  yearly,  as  apple-trees,  nut-trees,  pear- 
trees,  and  such  other,  whereof  the  predial  tithe  is  the  ap- 
ples, nuts,  pears,  and  such  other  fruits  as  come  of  them 
yearly  ;f  and  when  the  fruits  be  tithed,  if  the  owner  after 
sell  the  trees,  there  is  no  lithe  due  thereby,  for  two  tithes 
may  not  be  paid  of  one  thing.  J  And  of  those  tithes,  that 
is  to  say,  of- predial  tithes,  was  the  commandment  given 
in  the  old  law  to  the  Jews,  as  appeareth  Levit.  27,  where 
it  is  said,  Omncs  decimce  terra,  sive  de  pomis  arborum, 
sive  de  J'rugibiis,  Domini  sunt,  et  illi  sanctificantur ; 
that  is  to  say,  all  tithes  of  the  earth,  either  of  apples, 
of  trees,  or  of  grains,  be  our  Lord's,  and  to  him 
they  be  sanctified :  and  though,  the  said  law  speaketh 
only  of  apples,  yet  it  is  understood  of  all  manner  of 
fruits.  And  because  it  saith  that  all  the  tithes  of  the  earth 
be  our  Lord's,  therefore  calves,  lambs,  and  such  other 
must  also  be  tithed  :  and  they  be  called  by  some  men  pre- 
dial tithes,  that  is  to  say,  tithes  that  come  of  the  ground; 
howbeit  they  call  them  only  -prediah  mediate ;§  and  they 
be  the  same  tithes  that  in  this  writing  be  called  mixt  tithes  : 
and  the  other  tithes,  that  is  to  say,  tithes  of  apples  and 
corn,  and  such  other,  be  called  -prediah  immediate,  for 
they  come  immediately  of  the  ground,  and  so  do  not  mixt 
tithes,  as  evidently  appeareth. || 

*  3  Burn's  Eel.  Law,  374. 
t  1  Roll.  635;  2  Inst.  649. 
\  2  Fnst.  621,  652. 
§  Wats.,  c  49. 
||  2  Inst.  649. 


286  Doctor  and  Student. 

Doct.  But  what  thinkest  thou  shall  be  the  predial  tithe 
of  ashes,  elms,  sallows,  alders,  and  such  other  trees  as 
bear  no  fruits  whereof  any  profit  cometh?  Why  shall  not 
the  tenth  part  of  the  self  thing  be  the  tithe  thereof,  if  they 
be  cut  down,  as  well  as  it  is  of  corn  and  grass? 

Stud.  For  I  think  that  there  is  to  that  intent  great  diver- 
sity between  corn,  grass,  and  trees;  and  that  for  divers 
considerations,  whereof  one  is  this,  The  property  of  corn 
and  grass  is  not  to  grow  over  one  year,  and  if  it  do,  it  will 
perish  and  come  to  nought,  and  so  the  cutting  down  of  it  is 
the  perfection  and  preservation  thereof,  and  the  special 
cause  that  any  increase  folio weth  of  the  same  ;*  and  there- 
fore the  tenth  part  of  the  increase  shall  be  paid  as  a 
predial  tithe,  and  there  no  deduction  shall  be  made  for  the 
charges  of  it :  and  so  it  is  of  sheep  and  beasts,  that  must  be 
taken  and  killed  in  time,  for  else  they  may  perish  and  come 
to  nought :  but  when  trees  be  felled,  that  felling  is  not  the 
perfection  of  the  trees,  ne  it  causeth  not  them  to  increase, 
but  to  decay  ;  for  most  commonly  the  trees  would  be  better, 
if  they  might  grow  still.  And  therefore  upon  that  that  is 
the  cause  of  the  decay  and  destruction  of  them,  it  seems 
there  can  no  predial  tithe  arise.  And  some  men  say,  that 
this  was  the  cause  why  our  Lord  in  the  said  chapter  of 
Levit.  27,  gave  no  commandment  to  tithe  the  trees,  but  the 
fruits  of  the  trees  only. 

Doct.  It  appeareth  in  Paralip.  31,  that  the  Jews  at  the 
time  of  the  king  Ezechias  offered  in  the  temple  all  things 
that  the  ground  brought  forth  ;  and  that  was  trees  as  well 
as  corn  and  grass. 

Stud.  It  appeareth  not  that  they  did  that  by  the  com- 
mandment of  God,  and  therefore  it  is  like  that  they  did  it 
for  their  own  devotion,  and  of  a  favour  that  they  had  above 
their  duty  to  the  repairing  of  the  temple,  which  the  king 
Ezechias  had  then  commanded  to  be  repaired  :  and  so  that 
text  proveth  nothing  that  tithe  should  be  paid  for  trees. 
And  therefore  they  say  farther,  that  truth  it  is,  that  if  a  man 

*  Ante,  280. 


Dialogue   II. — Chap.  55.  287 

to  the  intent  he  would  pay  no  tithe,  would  wilfully  suffer 
his  corn  and  grass  to  stand  still,  and  to  perish,  he  should 
offend  conscience  therein'  :  but  though  he  suffer  his  trees  to 
stand  still  continually  without  felling,  because  he  thinketh 
the  tithe  would  be  asked  if  he  felled  them  (so  that  he  do  it 
not  oi  an  evil  will  to  the  curate),  he  offendeth  not  in  con- 
science, ne  he  is  not  bound  to  restitution  therefore,  as  he 
should  be  if  it  were  of  corn  and  grass,  as  before  appear- 
eth.*  And  another  diversity  is  this  :  In  this  case  of  tithe- 
wood,  the  tithe  thereof  would  serve  so  little  to  that  purpose 
that  tithes  be  paid  for,  that  it  is  not  likelv  that  they  that 
made  the  law  for  payment  of  tithes  intended  that  any  lithe 
should  be  paid  for  trees  or  wood  :  for  the  spiritual  ministers 
must  of  necessity  spend  daily  and  weekly,  and  therefore 
the  tithes  of  trees  or  wood,  that  cometh  so  seldom,  would 
serve  so  little  to  the  purpose  that  it  should  be  paid  for,  that 
it  would  not  help  them  in  their  necessity  :  so  that  if  they 
should  be  driven  to  trust  thereto,  though  it  might  help  him 
in  whose  time  it  should  happen  to  fall,  yet  it  should  deceive 
them  that  trusted  to  it  in  the  meantime,  and  also  should 
leave  the  parish  without  any  to  minister  to  them. 

Doc/.  I  would  well  agree,  that  for  trees  that  bear  fruit 
there  should  no  predial  tithe  be  paid  when  the}-  be  sold,  for 
the  predial  tithe  of  trees  is  the  fruits  that  come  of  them,  and 
so  there  cannot  be  two  predials  of  one  thing,  as  thou  hast 
said.f  But  of  other  trees  that  bear  no  fruit,  methinketh 
that  a  predial  lithe  should  be  paid  when  they  be  sold. 
And  so  it  appeareth  that  there  ought  to  be  by  the  constitu- 
tion provincial  made  by  the  reverend  father  in  God,  Robert 
Winchelsey,  late  archbishop  of  Canterbury,  where  it  is 
said  and  declared,  that  Sylva  avdua  is  of  every  kind  of 
trees  that  have  being,  in  that  they  should  be  cut,  or  that  be 
able  to  be  cut :%  whereof  we  will,  saith  he,  that  the  posses- 
sor of  the  said  wood  be  compelled  by  the  censures  of  the 

A.nte,  . 
t3  Burn's  Eccl.  Law,  375;  ante,  2S5. 
\  2  Inst.  642  ;  see  Stat.  45  Ed.  3,  c.  3. 


288  Doctor  and  Student. 

church  to  pay  to  the  parish-church,  or  mother-church,  the 
tithe,  as  a  real  or  predial  tithe.  And  so  by  virtue  of  that 
constitution  provincial  a  predial  tithe  must  be  paid  of  such 
trees  as  have  no  fruit :  for  I  would  agree,  that  the  said  con- 
stitution provincial  stretched  not  to  trees  that  bear  fruit, 
although  the  words  be  general  to  all  trees,  (as  before  ap- 
peareth.) 

Stud.  I  take  not  the  reason  why  a  predial  tithe  should 
not  be  paid  for  trees  that  bear  fruit,  to  be  because  two 
predial  tithes  cannot  be  paid  for  one  thing :  for  when  the 
tithe  is  paid  of  lambs,  yet  shall  tithe  be  paid  of  wool  of  the 
same  sheep  ;  for  it  is  paid  for  another  increase  :  and  so  it 
may  be  said  that  the  fruit  of  a  tree  is  one  increase,  and  the 
felling  another.*  But  I  take  the  cause  to  be,  for  the  two 
causes  before  rehearsed  ;  and  also  forasmuch  as  the  felling 
is  not  properly  an  increase  of  trees,  but  a  destruction  of  the 
trees,  as  it  is  said  before.  And  farther,  I  would  hear  thy 
mind  upon  the  said  constitution  provincial,  which  will,  that 
tithe  should  be  paid  for  trees  by  the  possessors  of  the  wood  ; 
that  if  the  possessor  fell  the  wood  for  C/.,  and  give  the 
buyer  a  certain  time  to  fell  it  in,  what  tithe  shall  the  posses- 
sor pay  as  long  as  the  wood  standeth? 

Doct.  I  think  none,  for  the  predial  tithe  cometh  not  till 
the  wood  be  felled  :  and  a  personal  tithe  he  cannot  pay,  no 
more  than  if  a  man  pluck  down  his  house  and  selleth  it,  or 
if  he  sell  all  his  land  :  in  which  cases  I  agree  well  he  shall 
pay  no  tithe,  neither  personal  nor  predial. 

Stud.  And  then  I  put  case  that  the  buyer  selleth-  the 
wood  again  as  it  is  standing  upon  the  ground  to  another  for 
CC/.,  what  tithe  shall  be  paid  then? 

Doct.  Then  the  first  buyer  shall  pay  tithe  of  the  surplus- 
age that  he  taketh  over  the  C/.  that  he  paid  as  a  personal 
tithe. 

Stud.  And  then   if  the   second  buyer  after   that   cut  it 

*  2  Inst.  652;  1  Roll.  Abr.  640;  Bunb.  10,  314;  1  Roll.  Abr.  642;  Bunb. 
90;  3  Burn's  Eel.  Law,  452. 


Dialogue   If. — Chap.   5$.  289 

down,  and  sell  it  when  it  is  cut  down  for  less  than  he  paid, 
what  tithe  shall  then  be  paid? 

Doc/.  Then  shall  he  that  selleth  them  pay  the  tithe  foi 
the  trees  as  a  predial  tithe. 

Stud.  I  cannot  see  how  that  can  be  :  for  he  neither  hath 
the  trees  that  the  predial  tithe  should  be  paid  for,  if  any 
ought  to  be  paid  ;  nor  he  is  not  possessor  of  the  ground 
where  the  trees  grow.  And  therefore  if  iiny  predial  tithe 
should  be  paid,  it  should  be  paid  either  by  the  first  posses- 
sor by  reason  of  the  words  of  the  said  constitution  provincial, 
which  be,  that  the  tithe  shall  be  paid  by  the  possessor  of 
the  wood  :  or  by  the  last  buyer,  because  he  hath  the  trees 
that  should  be  tithed  ;  and  by  the  first  possessor  the  tithes 
cannot  bo  paid  as  a  predial ;  for  he  cut  them  not  down,  ne 
they  were  not  cut  down  upon  his  bargain  ;  and  by  the  last 
buyer  it  cannot  be  paid,  neither  as  a  predial  tithe,  for  the 
said  constitution  saith,  that  the  possessor  of  the  woods 
should  be  compelled  to  pay  it.  And  therefore  I  suppose 
that  the  truth  is,  that  in  that  case  no  tithe  shall  be  paid  :  for 
as  to  the  last  seller,  he  shall  pay  no  personal  tithe,  for  he 
gained  nothing,  as  it  appeareth  before  ;  and  no  predial  tithe 
shall  be  paid,  for  it  should  be  against  the  said  prescription  ; 
and  also  the  cutting  down  is  the  destruction  of  trees,  and 
not  their  preservation,  as  is  said  before. 

Doct.  Then  takest  thou  the  said  constitution  to  be  of 
small  effect,  as  it  seemeth. 

Stud.  I  take  it  to  be  of  this  effect :  That  of  wood  above 
twenty  years  it  bindeth  not,  because  it  is  contrary  to  the 
Common  law,  and  to  the  said  prescription,  that  standeth 
good  in  the  Common  law,  but  of  wood  undertwenty  years, 
whereof  lithe  hath  been  accustomed  to  be  paid,  the  consti- 
tution is  not  against  the  said  prescription,  because  paying 
of  tithe  under  twenty  years  is  not  prohibited,  but  suffered 
by  the  said  statute.*  Ilowbeit  some  say,  that  by  the  very 
rigour  of  the  Common  law  tithes  should  not   be  paid  for 

•  Ante,  278,  279. 
*9 


290  Doctor  and  Student. 

wood  under  thirty  years,  no  more  than  for  above  twenty 
3'ea:s,  and  that  prohibition  in  that  case  lieth  by  the  Com- 
mon law  :  nevertheless,  because  it  hath  been  suffered  to  the 
contrary,  and  that  in  many  places  tithes  hath  been  paid 
thereof,  I  pass  it  over  :  but  where  tithe  hath  not  been  paid 
of  wood  under  twenty  years,  I  think  none  ought  to  be  paid 
at  this  day  in  law  or  conscience.  But  admit  that  the  said 
constitution  taketh  effect  for  payment  of  the  wood  under 
twenty  years  as  of  a  predial  tithe,  yet  I  cannot  see  how  the 
tithe  thereof  should  be  paid  by  the  possessor  of  the  wood, 
if  he  sell  them,  but  that  it  should  be  paid  rather  by  him  that 
hath  the  trees  :  for  the  constitution  is,  that  the  tithe  shall  be 
paid  as  a  real  or  predial  tithe,  and  that  is  their  part  of  the 
same  trees,  as  it  is  of  corn.  And  if  a  man  buy  corn  upon 
the  ground,  the  buyer  shall  pay  the  tithe,  and  not  the 
seller  :*  and  so  it  would  seem  to  be  here.  And  what  the 
constitution  meant,  to  decree  the  contrary  in  tithe  wood,  I 
cannot  tell,  unless  the  meaning  were  to  induce  the  owners 
to  pay  tithes  of  great  trees  when  they  fell  them  to  their  own 
use  ;  which  methinketh  should  be  very  hard  to  stand  with 
reason,  though  the  said  statute  had  never  been  made,  as  I 
have  said  before.  And  furthermore,  I  would  here  (under 
correction)  move  one  thing,  and  that  is  this,  That,  as  it 
seemeth,  that  they  that  were  at  the  making  of  the  said  con- 
stitution, and  knew  the  said  prescription,  did  not  follow  the 
direct  order  of  charity  therein  so  perfectly  as  they  might 
have  done  :  for  when  they  made  the  said  constitution  pro- 
vincial directly  against  the  said  prescription,  they  set  law 
against  custom,  and  power  against  power,  and  in  a  manner 
the  spiritualty  against  the  temporalty,  whereby  they  might 
well  know  that  great  variance  and  suit  would  follow.  And 
therefore  if  they  had  clearly  seen  that  the  said  prescription 
had  been  against  conscience,  they  should  first  have  moved 
the  king  and  his  council,  and  the  nobles  of  the  realm,  to 
have  assented  to  the  reformation  of  that  prescription,  and 
not  to  make  a  law  as  it  were  by  authority  and  power  against 

*  Noy,  150,  con.  Cro.  Jac.  362  ;  Brownl.  34. 


Dialogue   II. — Chap.  55.  291 

the  prescription,  and  then  to  threat  the  people,  and  make 
them  believe  that  they  were  all  accursed  that  kept  the  said 
prescription,  or  that  maintained  it.  And  it  seemeth  to  stand 
hardly  with  conscience  to  report  so  many  to  stand  accursed 
for  following  of  the  said  statute,  and  of  the  said  prescrip- 
tion as  there  do,  and  yet  to  do  no  more  than  hath  been  done 
to  bringlhem  out  of  it. 

Doct.  Methinketh  that  it  is  not  convenient  that  laymen 
should  argue  the  laws  and  the  decrees  or  constitutions  of 
the  church  :*  and  therefore  it  were  better  for  them  to  give 
credence  to  spiritual  rulers  that  have  cure  of  their  souls, 
than  to  trust  to  their  own  opinions^  and  if  they  would  do  so, 
then  such  matters  would  much  the  more  rather  cease  than 
they  will  do  by  such  reasonings. 

Stud.  In  that  that  belongeth  to  the  articles  of  the  faith,  I 
think  the  people  be  bound  to  believe  the  church,  for  the 
church  gathereth  together  in  the  Holy  Ghost  cannot  err  in 
such  things  as  belongeth  to  the  catholick  faith  ;  but  where 
the  church  maketh  any  laws  whereby  the  goods  or  posses- 
sions of  the  people  may  be  bound,  or  by  this  occasion  or 
that  may  be  taken  from  them,  there  the  people  may  law- 
fully reason  whether  the  laws  bind  them  or  not;  for  in  such 
laws  the  church  may  err  and  be  deceived,  and  deceive 
other,  either  for  singularity,  or  for  covertise,  or  some  other 
cause.  And  for  that  consideration  it  pertaineth  most  to 
them  that  be  learned  in  the  law  of  the  realm  to  know  such 
laws  of  the  church  as  treat  of  the  ordering  of  lands  or  goods, 
and  to  see  whether  they  may  stand  with  the  laws  of  the 
realm  or  not.  And  therefore  it  is  necessary  for  them  to 
know  the  laws  of  the  church  that  treat  of  dismes,  of  ex- 
ecutors, of  testaments,  of  legacies,  bastardy,  matrimony, 
and  divers  other,  wherein  they  be  bound  to  know  when  the 
law  of  the  church  must  be  followed,  and  when  the  law  of 
the  realm  :f  whereof  because  it  is  not  our  purpose  to  treat, 
I  leave  to  speak  any  more  at  this  time,  and  will  resort  again 

s  2  Comyn's  Digest,  title  Canons,   1,  2 
f  Ante,  16. 


292  Doctor  and  Student. 

to  speak  of  tithes ;  wherein  some  men  say  that  of  tin,  coal, 
and  lead,  no  tithe  should  be  paid  when  they  be  sold  by  the 
owner  of  the  ground,  because  it  is  part  of  the  inheritance, 
and  it  is  more  rather  a  destruction  of  the  inheritance  than 
an}'-  increase.*  And  therefore  they  say,  that  if  a  man  take 
a  tinwork,  and  give  the  lord  the  tenth  dish,  according  to 
the  custom,  that  the  lord  shall  pay  no  tithe  of  that  te*nth  dish, 
neither  predial  nor  personal  :  but  if  the  other  that  taketh 
the  work,  have  gains  and  advantage  by  the  work,  it  seem- 
eth  that  it  were  not  against  reason  that  he  should  pay  a  per- 
sonal tithe  of  his  gains,  the  charge  deducted. f 

Doct.  I  pray  thee  shew  me  first  what  thou  takest  for  a 
personal  tithe,  and  upon  what  ground  personal  tithes  be 
paid,  as  thou  thinkest,  so  that  one  of  us  mistake  not  an- 
other therein. 

Stud.  I  will  with  good-will.  And  therefore  thou  shalt 
understand  that,  as  I  take  it,  personal  tithes  be  not  paid  for 
any  increase  of  the  ground,  but  for  such  profit  as  cometh 
by  the  labour  or  industry  of  the  person,  as  by  buying  and 
selling,  and  such  other  ;$  and  such  personal  tithes,  as  I  take 
it,  must  be  ordered  after  the  custom,  and  the  church  hath 
not  used  to  levy  those  tithes  of  compulsion,  but  by  con- 
science of  the  parties.  Nevertheless  Raymond  saith,  that 
it  is  good  to  pay  personal  tithes,  or  with  the  assent  of  the 
parson  to  distribute  them  to  poor  men,  or  else  to  pay  a  cer- 
tain portion  for  the  whole.  But  as  Innocent  saith,  where 
the  custom  is  that  they  should.be  paid,  the  people  be  bound 
to  pay  them  as  well  as  predials,  the  expences  deduct. 
Howbeit  in  the  church  of  England  they  use  to  sue  for  such 
personal  tithes  as- well  as  for  predials  ;§  and  that  is  by  rea- 
son of  the  constitution  provincial  that  was  made  by  Robert 
Winchelsey,  by  the  which  it  was  ordained,  that  personal 
tithes  should  be  paid  of  crafts  and  merchandise,  and  of  the 

*  But  by  custom  tithes  of  any  of  these  may  be  payable.  2  Inst.  651 ;  I 
Roll.  Abr.  646. 

tLind.  19^;  post.  293. 
\  3  Burn's  Eel.  375. 
§Lind.  195. 


Dialogue   II. — Chap.   55.  293 

lucre  of  buying  and  selling,  and  in  like  wise  of  carpenters, 
smiths,  weavers,  masons,  and  all  other  that  work  for  hire, 
that  they  shall  pay  tithes  of  their  hire,*  except  they  will  give 
any  certain  thing  to  the  use  or  the  light  of  the  church,  if  it 
so  please  the  parson.  And  in  another  place  the  said  arch- 
bishop saith,  that  of  the  pawnage  of  woods  and  such  other 
things,  etc.,  and  of  fishings,  trees,  bees,  doves,  and  of 
divers  other  things  there  remembered,  and  of  crafts,  and  of 
buying  and  selling,  and  of  the  profits  of  divers  other  things 
there  recited,  every  man  should  help  satisfy  competently  in 
the  church,  to  the  which  they  be  bound  to  give  it  of  right  ;f 
no  expences  by  the  giving  of  the  said  tithes  deducted  or 
withholden,  but  only  for  the  payment  of  tithes  of  crafts,  and 
of  buying  and  selling.  And  by  reason  of  the  said  constitu- 
tions provincial,  sometimes  suits  be  taken  in  the  spiritual 
court  for  personal  tithes  ;  and  therefore  many  men  do  mar- 
vel because  deductions  many  times  must  be  referred  to  the 
conscience  of  the  parties.  And  they  marvel  also  why  a 
law  should  be  made  in  this  realm  for  paying  of  personal 
tithes,  more  than  there  is  in  other  countries.  And  here  I 
would  gladly  move  thee  farther  in  one  thing  concerning 
such  personal  tithes,  to  know  thy  mind  therein,  and  that  is, 
If  a  man  give  to  another  a  horse,  and  he  selleth  that  horse 
for  a  certain  sum,  shall  he  pay  any  tithe  of  that  sum? 

Doct.  What  thinkest  thou  therein? 

Stud.  I  think  that  he  shall  pay  no  tithe  :  for  there,  as  I 
take  it,  the  profit  cometh  not  to  him  by  his  own  industry, 
but  by  the  gift  of  another  ;|  and,  as  I  take  it,  personal 
tithes  be  not  paid  for  every  profit  or  advantage  that  cometh 
newly  to  a  man,  except  it  come  by  his  own  industry  or 
labour,  and  so  it  doth  not  here.      And  also  if  he  should  pay 

*N.  B.  By  the  statute  of  2  and  3  Ed-  6,  c.  13,  the  rigour  of  the  Canon 
Law  as  to  personal  tithes  is  much  softened,  and  it  may  be  observed  that 
they  are  n  >w  scarce  any  where  paid  in  England,  unless  for  mills  or  fish 
caught  at  sea.  Wood,  b.  2,  c.  22;  1  Roll.  Abr.  641,  pi.  1;  2  P.  Wins. 
Rep.  .163. 

(•  Cro.  Car.  339;  1  Lev.  179;  Sid.  271 ;  3  Burn's  Eel.  Law,  471,  472,  473. 

J  1  Roll.  Abr.  656,  N.  pi.  ;  post.  297;  2  Inst.  649. 


294  Doctor  and  Student. 

tithe  of  that  he  sold  the  horse  for,  he  should  pay  tithe  for 
the  very  whole  value  of  the  thing  :  and,  as  I  take  it,  the 
personal  tithes  for  buying  and  selling  shall  never  be  paid 
for  the  value  of  the  thing,  but  for  the  clear  gains  of  the 
thing.  And  therefore  I  take  the  cases  before  rehearsed, 
where  a  man  selleth  his  land,  or  pulleth  down  a  house  and 
selleth  the  stuff,  that  he  should  there  pay  no  tithe,  that  it  is 
there  to  be  understood,  that  he  that  hath  land  or  house  by 
gift,  or  by  descent :  for  if  a  man  buy  land,  or  buy  timber 
and  stuff  of  a  house,  and  sell  it  for  gain,  I  suppose  that  he 
should  pay  a  personal  tithe  for  that  gain.  And  this  case  is 
not  like  to  a  fee  or  annuity  granted  for  counsel,  where  the 
whole  fee  shall  be  tithed  for  the  charges  deducted,  or  some 
certain  sum  for  it  by  agreement :  for  there  the  whole  fee 
cometh  for  his  counsel,  which  is  by  his  own  industry  ;  but 
in  the  other  case  it  is  not  so.  And  the  same  reason  as  for 
the  personal  tithe  might  be  made  of  trees,  when  they  de- 
scend or  be  given  to  any  man,  and  he  selleth  them  to  an- 
other, that  he  shall  pay  no  personal  tithe. 

Doct.  Methinketh  that  if  the  horse  amend  in  his  keeping, 
and  then  he  sell  the  horse,  that  then  the  tithe  shall  be  paid 
of  that  that  the  horse  hath  increased  in  value  after  the  gift: 
and  so  it  may  be  of  trees,  that  he  shall  pay  tithe  of  that  that 
the  trees  mav  be  amended  after  the  gift  or  descent. 

Stud.  Then  the  tithe  must  be  the  tenth  part  of  the  in- 
crease, the  expences  deducted :  and  then  of  trees  the 
charges  must  also  be  deducted,  for  it  is  then  a  personal 
tithe  ;  and  there  is  no  tree  that  is  so  much  worth  as  it  hath 
hurt  the  ground  by  the  growing  :  therefore  there  can  no 
personal  tithe  be  paid  by  the  owner  of  the  ground  when  he 
selleth  them,  though  they  have  increased  in  his  time. 
Nevertheless  I  will  speak  no  farther  of  that  matter  at  this 
time,  but  will  shew  thee,  that  if  tin,  lead,  coal,  or  trees  be 
sold,  that  a  mixt  tithe  cannot  grow  thereby.  For  a  mixt 
tithe  is  properly  of  calves,  lambs,  pigs,  and  such  other 
that  come  part  of  the  ground  that  they  be  fed  of,  and  part 
of  the  keeping,  industry  and  oversight  of  the  owners,  as  it 


Dialogue   II. — Chap.    $$.  295 

is  said  before.*  But  tin,  lead,  and  coal  are  part  of  the 
ground,  and  of  the  freehold,  and  trees  grow  of  themselves, 
and  be  also  annexed  to  the  freehold,  and  will  grow  of  them- 
selves. And  also  the  mixt  tithe  must  be  paid  yearly  at 
certain  times  appointed  by  the  law,  or  by  custom  of  the 
country  •"  but  it  may  happen  that  tin,  lead,  coal,  and  trees 
shall  not  be  felled  or  taken  in  many  years,  and  so  it  seem- 
eth  it  cannot  be  an)'  mixt  tithe.  And  these  be  some  of  the 
reasons,  which  they  that  would  maintain  that  statute  and 
prescription  to  be  good,  make  to  prove  their  intent,  as  they 
think. 

Docl.  What  think  they,  if  a  man  sell  the  lops  of  his 
wood,  whether  any  tithe  ought  there  to  be  paid? 

Stud.  They  think  all  one  law  of  the  trees  and  of  the 
lops.f 

Docl.  And  if  he  use  to  sell  the  lops  once  in  fifteen  or 
sixteen  years,  what  hold  they  then? 

Stud.   That  all  is  one. 

Doct.  And  what  is  the  reason  why  tithe  ought  not  to  be 
paid  there  as  well  as  for  wood  under  twenty  years? 

Stud.  For  they  say  that  the  lops  are  to  be  taken  of  the 
same  condition  as  the  trees  be,  what  time  soever  they  be 
felled  ;  and  that  no  custom  will  serve  in  that  case  against 
the  statute,  no  more  than  it  should  do  of  great  trees. % 

Doct.  And  what  hold  they  of  the  bark  of  the  tree? 

Stud.  Therein  I  have  not  heard  of  their  opinion,  but  it 
seemeth  to  be  one  law  with  the  lops. 

Doct.  I  perceive  well  by  that  thou  hast  said  before,  that 
thy  mind  is,  that  if  a  whole  country  prescribe  to  be  quit  of 
tithes  of  trees,  corn,  and  grass,  or  of  any  other  tithes,  that 
that  prescription  is  good,  so  that  the  spiritual  ministers 
have  sufficient  beside  to  live  upon.§     Dost  thou  mean  so? 

Wats.,  c.  49;  2  [nst.  6{S:   1  Roll.  Abr.  635. 

fSccthc  great  case  of  Walton  and  Lady  Mary  Trvon,  Dec.  15,  1 75 1 , 
mentioned  by  Dr.  Burn  in  his  Eel.  Law,  3  vol.,  p.  440,  which  finally  settles 
this  point. 

X  n  Rep  4S ;   1  Cro.  478;  Br.  Dismes,  pi.  14. 

§3  Burn's  Eel.  Law,  400;  ante,  .284. 


296  Doctor   and   Student. 

Stud.  Yea  verily. 

Doct.  And  then  I  would  know  thy  mind,  if  any  man 
contrary  to  that  prescription  were  sued  in  the  spiritual  court 
for  corn  and  grass,  or  any  other  tithes,  whether  a  prohibi- 
tion should  lie  in  that  case,  as  it  did  after  thy  mind  before 
the  said  statute,  where  a  man  was  sued  in  the  spiritual 
court  for  tithe  wood. 

Stud.   I  think  nay. 

Doct.  And  why  not  there,  as  well  as  it  did  where  a  man 
was  sued  for  the  tithe  wood? 

Stud.  For,  as  I  take  it,  there  is  great  diversity  between 
the  cases,  and  that  for  this  cause  :  There  is  a  maxim  in  the 
law  of  England,  that  if  any  suit  be  taken  in  the  spiritual 
court  whereby  any  goods  or  land  might  be  recovered, 
which  after  the  grounds  of  the  law  of  the  realm  ought  not 
to  be  sued  there,  though  percase  the  king's  court  shall  hold 
no  plea  thereof,  that  yet  a  prohibition  should  lie  :*  and 
after  when  it  had  continued  long  that  no  tithes  were  paid 
of  wood,  because  of  the  said  prohibition,  and  that  after  by 
process  of  lime  some  curates  began  to  ask  tithe  of  wood, 
contrary  to  the  law,  and  contrary  to  the  said  prescription, 
so  that  variance  began  to  arise  between  curates  and  their 
parishioners  in  that  behalf;  then  for  appeasing  the  said 
variance  the  said  statute  was  made,  and  that,  as  it  seemeth 
more  at  the  calling  on  of  the  spiritualty  than  of  the  tem- 
poralt}'  :  for  the  statute  doth  not  expressly  grant  that  the  pro- 
hibition in  that  case  of  tithe  wood  should  lie  so  largely  as 
some  say  it  lay  by  the  law ;  howbeit  it  doth  not  restrain  the 
Common  law  therein,  as  it  appeareth  evidently  by  the  words 
of  the  statute.  J  And  so  after  some  men,  it  appeareth  be- 
fore the  statute,  and  also  after  the  statute,  (as  I  have  touched 
before)  that  the  spiritual  court  ought  not  in  that  case  to 
have  made  any  process  for  tithe  wood  :  and  therefore  if 
they  did,  a  prohibition  lay  by  the  Common  law.  And  like 
law  as  if  the  spiritual  court  make  process  upon  such  legacy 

•  Ante,  1S1. 

|  Ante,  279,  290. 


Dialogue   II. — Chap.  55.  297 

as  by  the  law  of  the  realm  is  void.     As  if  a  man  bequeath 

to  one  another  man's  horse,  and  the  spiritual  court  there- 
upon maketh  process  to  execute  that  legacy,  there  a  pro- 
hibition lieth  :  for  it  appeareth  evidently  in  the  libel,  if  all 
the  truth  appeareth  in  the  libel,  that  in  the  law  of  the  realm 
the  legacy  is  void  to  all  intents  ;  and  that  he  to  whom  the 
legacy  is  made  shall  neither  have  the  horse  nor  the  value 
of  th'j  horse.  And  in  like  wise  if  a  man  si  11  his  land  lor  one 
hur  dred  pounds,  and  he  is  sued  after  in  the  spiritual  court  for 
tithe  of  the  said  hundred  pounds,  there  a  prohibition  shall 
lie;'*  for  it  appeareth  in  that  case  openly  in  the  libel,  that 
no  tithe  ought  to  be  paid,  and  that  the  spiritual  law  ought  not 
in  that  case  to  make  any  process  whereby  the  goods  of 
him  that  sold  the  land  might  be  taken  from  him  against  the 
law  of  the  realm.  And  upon  this  ground  it  is,  that  if  a  man 
were  suedf  in  the  spiritual  court  now  sith  the  statute  J  for 
a  Mortuary, %  that  a  prohibition  should  lie,  for  it  appeareth  in 
the  libel,  that  sith  the  statute  there  ought  no  suit  to  be  taken 
for  mortuaries  ;||  and  the  same  law  is,  if  any  suit  were  taken 
in  the  spiritual  court  tor  a  new  duty,  that  is  of  late  taken  in 
some  places  upon  leases  of  parsonages  and  vicarages,  which 
is  called  a  Dimission  noble,  for  it  appeareth  evidently  in  the 
libel,  if  any  be  made  thereupon,  that  no  such  process  ought 
by  the  law  of  the  realm  to  be  made  in  that  behalf.  But  in 
the  case  ofitithe  corn  or  grass,  or  such  other  things,  wherein 
thou  hast  desired  to  know  my  mind,  there  appeareth  nothing 
in  the  libel,  but  that  the  suit  thereof  of  right  appertaineth 
to  the  spiritual  law  ;^[  and  so  for  any  thing  that  appeareth 
the  party  may  be   holpen  in  the  spiritual  court  by  the  pre- 

*  Ante,  :S-f. 

t  Post   303,  305. 

%  21  II.  S,  c  6. 

§  Sec  post-  304,  of  what  in  general  a  mortuary  consisted  before  the  act 
of  Henry. 

||  But  a  man  may  be  sued  in  the  spiritual  court  for  the  money  given  by 
the  statute,  for  it  is  recoverable  there  as  an  ecclesiastical  right,  just  as  a 
mortuary  was  before  the  statute.  12  Mod.  416,  Johnson  v.  Rysons.  The 
money  may  be  sued  for  as  a  mortuary,  as  it  has  now  obtained  that  name. 

\  2  Burn's  Eccl.  Law,  4S1,  4S2. 


298  Doctor  and  Student. 

scription.  And  if  the  case  were  so  put,  that  in  the  spiritual 
court  they  would  not  allow  the  said  prescription,  yet  I  think 
no  prohibition  shall  lie.  For  though  the  spiritual  judges  in 
a  spiritual  matter  deny  the  parties  of  justice,  yet  the  king's 
laws  cannot  reform  that,  but  must  remit  it  to  their  con- 
science. But  if  there  were  some  remedy  provided  in  that 
case,  it  were  well  done  ;  for  some  men  say,  that  in  the 
spiritual  court  the}'  will  admit  no  plea  against  tithes.  And 
also  if  a  composition  were  made  by  assent  of  the  patron, 
and  also  of  the  ordinary,  between  a  parson  and  one  of  his 
parishioners,  that  the  parson  and  his  successors  should  have 
for  a  ceriain  ground  so  many  quarters  of  corn  for  his  tithe 
yearly,  and  after,  contrary  to  the  composition,  the  parson 
in  the  spiritual  court  asketh  the  tithes  as  they  fall  ;*  that  in 
this  case  no  prohibition  should  lie  ;  ne  yet  though  the  case 
were  farther  put,  that  the  composition  were  pleaded  in  the 
court,  and  were  disallowed  ;  but  all  resteth  in  the  conscience 
of  the  judge  spiritual,  (as  is  said  before. )f  Howbeit,  be- 
cause some  be  of  opinion  that  a  prohibition  should  lie  in 
this  last  case,  therefore  I  will  refer  it  to  the  judgment  of 
other ;  but  in  the  case  of  prescription,  before  rehearsed,  I 
take  it  for  the  clearer  case,  that  no  prohibition  should  lie, 
as  I  have  said  before.  And  1  beseech  our  Lord,  that  this 
matter  and  such  other  like  thereto,  may  be  so  charitably 
looked  upon,  that  there  be  not  hereafter  such  divisions,  ne 
such  diversities  of  opinions  therein,  as  has  been  in  time 
past,  whereby  hath  followed  great  costs  and  charges  to 
many  persons  in  this  realm  ;  and  that  hath  moved  me  to 
speak  so  far  in  this  chapter,  and  in  divers  other  chapters  in 
this  present  book,  as  I  have  done  :  not  intending  thereby  to 
give  occasion  to  any  person  to  withhold  his  tithes  that  of 
right  ought  to  be  paid,  ne  to  alter  the  portion  therein  before 
accustomed;  but  that  (as  methinketh)  they  ought  to  be 
claimed  by  the  same  title  as  they  ought  to  be  paid,  and  by 
none  other ;  and  that  it  may  also  somewhat  appear  that  the 

*2  Black.  Com.  28,  29. 
t  See  2  Inst.  610. 


Dialogue   II. — Chap.  55.  299 

said  statute  of  45  Edvv.  III.*  was  well  and  lawfully  made, 
and  upon  a  good  reasonable  consideration,  and  that  the  said 
prescription  is  good  also  ;  so  that  no  man  was  in  any  danger 
of  excommunication  for  the  making  of  the  said  statute,  nor 
yet  is  not  for  the  observing  thereof,  ne  yet  of  the  said  pre- 
scription, as  it  is  noted  by  some  persons  that  there  should 
be.  And  thus  I  commit  thee  unto  our  Lord,  who  ever  have 
both  thee  and  me  in  his  blessed  keeping  everlastingly. 
Amen. 

•  2  Inst.  642. 


ADDITIONS 


SECOND    DIALOGUE 


DOCTOR  AND   STUDENT 


CONTAINING 


THIRTEEN  CHAPTERS 


POWER  AND  JURISDICTION  OF  THE  PARLIAMENT,  Etc 

(301) 


ADDITIONS 


SECOND    DIALOGUE 


DOCTOR  AND  STUDENT,  Etc. 


Chap.  I. —  What  the  parliament  may  do  concerning  the 
spirituality  and  the  spiritual  jurisdiction ,  and  what  not. 

Doct.  I  pray  thee  let  me  know  thy  mind  in  this  question, 
Whether  laymen  (as  thee  thinketh)  have  power  to  make 
any  laws  of  mortuaries?  , 

Stud.  There  was  a  law  made  of  mortuaries  in  the  par- 
liament holden  in  the  21  Hen.  VIII.,  c.  6,*  by  the  assent 
of  the  king,  and  of  all  the  lords  spiritual  and  temporal  of 
the  realm,  and  of  all  the  commons  ;f  and  I  hold  it  not  best 
to  reason,  or  to  make  arguments,  whether  they  had  authority 
to  do  that  they  did  or  not.  For  I  suppose,  that  no  man 
would  think  that  they  would  do  anything  that  they  had  not 
power  to  do. 

Doct.  I  mean  not  onlv  of  mortuaries,  that  that  statute 
meaneth  of,  but  I  mean  of  such   things  as  be  brought  to 

;:;  This  statute,  which  limits  the  sums  which  shall  be  taken  for  mortuaries, 
now  stands  in  full  force,  except  as  to  the  seventh  clause,  which  is  repealed 
by  12  Ann.,  st.  2,  c  6,  and  2S  Geo.  2,  c  6. 

t  Ante,  297. 

(303) 


304  Doctor  and  Student. 

burials  of  dead  persons;*  whereof  some  concern  the  ser- 
vice of  God,  or  the  relief  of  the  soul,  and  some  the  worldly 
countenance  :  as  in  some  places,  the  church  claimeth  to  have 
the  taper  that  standeth  in  the  middle  of  the  hearse  over  the. 
heart  of  the  corpse,  and  some  claim  to  have  all  the  tapers  ; 
some  also  claim  to  have  one  of  the  torches  that  is  about  the 
hearse,  and  some  to  have  all  the  torches.  And  if  the  body 
be  brought  in  a  chariot,  or  with  coat  armour,  or  such  other, 
then  they  claim  all  the  horses  and  chariot,  and  the  apparel, 
or  part  thereof;  and  the  coat  armours  or  other  like,  as  se- 
queses  to  the  body.  And  these  rights  and  duties  be  called 
in  some  places  mortuaries  :f  and  of  these  I  mean  most  prin- 
cipally in  this  question.  I  pray  thee  let  me  know  what 
thou  thinkest  therein. 

Stud.   I  pray  thee  let  me  first  know  what  is  thy  opinion 
in  this  question. 

Doct.  I  think  that  of  such  of  the  said  mortuaries  as  the 
church  hath  right  in,  in  such  manner  as  is  before  rehearsed 
by  prescription  or  otherwise,  and  of  such  things  as  be  or- 
dained at  such  burials  to  the  service  of  God,  or  to  the  re- 
lief of  the  soul,  that  the  parliament  hath  no  power  to  pro- 
hibit them  ;  as  to  prohibit  that  the  church  should  have  no 
such  mortuaries,  or  thaWthere  should  not  be  bidden  to  the 
burial  so  many  priests,  or  that  there  shall  not  be  above  so 
many  tapers  or  torches  ;  or  that  there  shall  not  be  given 
above  such  a  certain  sum  in  alms  :  I  suppose  that  the  par- 
liament hath  no  power  to  these  things,  for  they  be  annexed 
to  the  right  spiritual  whereof  the  temporal  jurisdiction  hath 
no  power  :  for  the  inferior  may  not  judge  upon  the  superior. 
But  to  make  a  law,  that  there  shall  not  be  given  above  so 
man\-  black  gowns,  or  that  there  shall  not  be  any  herald  of 
arms  there,  but  he  that  is  buried  were  of  such  a  degree  ;  or 
that  no  black  cloths  shall  be  hanged  in  the  streets  from  the 
house  where   he  died   to  the   church,  as  is  used  in  many 

•  Wats.  Com.  Inc.  1053,  cap.  23;  3  Burn's  Eccl.  Law,  500,  501. 
t  But  they  are  all  entirely  abolished  by  the  statute  of  II.  S,  and  subse- 
quent statutes  relating  to  mortuaries. 


Dialogue   II. — Chap.    i.  305 

cities  and  good  towns,  or  to  prohibit  such  other  things  as 
be  but  wordly  pomps,  and  be  rather  consolations  to  the 
friends  that  be  alive  than  any  relief  to  the  soul  that  is  de- 
parted, wherefore  the  church  favoureth  them  not.  I  think 
the  parliament  hath  good  authority  to  make  a  law  ;  I  pray 
tin  e  let  me  know  thy  mind  what  thou  thinkest  in  these 
diversities. 

Stud.  Verily  I  think  that  in  all  the  cases  before  rehearsed, 
the  parliament  with  a  cause,  hath  good  authority  to  make 
laws  ;  as  if  it  were  ordained  by  the  parliament,  that  at  such 
burials  the  church  should  neither  have  torch  nor  taper, 
horse  nor  chariot,  nor  none  other  thing  like,  but  that  they 
should  always  pertain  to  the  executors  to  the  use  of  the 
testator :  it  were  a  good  statute,  and  ought  to  be  observed, 
as  well  by  spiritual  men  as  by  temporal  ;  and  this  I  take  to 
be  the  reason  why,  for  all  goods,  though  they  be  in  the 
hands  of  spiritual  men,  be  temporal  concerning  the  body, 
and  nourishing  the  body,  as  they  do  to  temporal  men. 
And  John  Gerson  holdeth  the  same  opinion,  as  it  appeareth 
in  his  treatise  of  the  Spiritual  Life  of  the  Soul,  the  second 
lesson,  and  the  third  corollary,  whereof  mention  is  made 
more  at  large  in  the  first  dialogue  in  English,  chap. 
3.*  And  all  temporal  things  the  king  and  his  pro- 
genitors, as  in  the  right  of  the  crown,  have  in  this  realm 
alway  ordered  and  judged  by  his  laws  :  and  therefore  I 
suppose  that  the  parliament  may  enact,  that  there  shall  not 
be  laid  upon  a  deceased  person  but  such  a  cloth,  or  thus 
many  tapers  or  candles  set  up  about  him. f  And  here  I 
would  say  farther  in  one  thing,  and  that  is  this,  that  no 
prescription  had  by  the  authority  of  the  spiritual  law,i  may 
give  no  right  within   this  realm  to  those  mortuaries  that  we 

*  Ante,  215. 

f  Ante,  247. 

J  The  ecclesiastical  law  allows  of  different  times  in  creating  customs  or 
prescriptions.  Sometimes  thirty,  Godolphin's  Orphan's  Legacy,  62  ;  eome- 
times  forty,   1  P.  Wins.  667;  Str.  422;  and  sometimes  fifty  years,  Str.  S3, 
make  a  prescription. 
20 


306  Doctor  and  Student. 

speak  of  now,  nor  to  the  said  mortuaries  that  be  put  alway 
by  the  said  statute,  nor  y.et  to  any  pension  or  annuity  ;*  but 
if  any  right  shall  be  won  therein  by  prescription,  it  must  be 
by  a  prescription  had  after  the  course  of  the  law  of  the 
realm  ;f  and  the  least  prescription  thereof  is  this,  that  is  to 
say,  that  no  man's  mind  may  remember  the  contrary 
thereof  whereof  the  prescription  is  made.  And  if  this  be 
true,  then  have  many  mortuaries  been  claimed,  and  taken 
in  time  past,  without  title,  whereby  the  takers  have  been 
bounded  to  restitution.  And  that  is  true  that  I  have  said 
of  such  prescriptions  of  mortuaries  and  pensions,  methink- 
eth  it  may  appear  thus  :  If  there  were  a  law  made  by  the 
church,  that  at  every  burial  the  curate  should  have  all  the 
tapers  and  torches  that  were  about  the  corpse,  I  suppose 
that  it  is  clear,  that  that  law  bound  not  in  this  realm  there 
as  no  prescription  was  thereof  before.  And  if  a  law  made 
by  the  church  should  not  in  this  case  bind,  how  should 
then  a  prescription,  grounded  only  upon  the  laws  of  the 
church,  bind?  I  cannot  see  how:  but  if  it  were  in  a 
country  where  the  church  hath  sovereignty  in  temporal 
things,  it  were  a  greater  doubt.  And  in  this  case  many 
say,  that  a  prohibition  ought  of  right  to  be  granted  to  pro- 
hibit the  spiritual  judges,  that  they  shall  not  give  sentence 
against  the  prescription  of  the  king's  law,  whereby  any 
temporal  goods  may  be  bound,  as  well  as  that  they  shall 
not  hold  plea  of  that  that  belongeth  to  the  king's  law,  but 
such  a  prohibition  is  not  in  use.|  But  if  it  were  enacted, 
that  a  prohibition  should  hereafter  lay  in  that  case,  I  sup- 
pose that  it  were  a  right  good  and  a  reasonable  staiute. 
And  also  whether  such  a  prescription,  after  the  law  of  the 
church,  give  title  for  tithes,  is  after  some  men  the  greater 
question  :  but  I  will  no  farther  speak  thereof  at  this  time. 
And  as  to  the  coat  armour,  shield  and  sword  and  such  other 
things  as  be  sometime  set  up  at   the   burial  of  noble  men, 

§  2  Inst.  491. 

f  Ante,  27;  Co.  Litt.  114. 

X  Ante,  1S1. 


Dialogue   II. — Chap.   i.  307 

some  men  say  that  they  belong  not  to  the  church,  but  to  the 
executors  :*  and  that  they  ought  to  remain  there  to  the 
honour  of  tin?  body,  and  to  the  memorial  of  the  soul,  as 
long  as  they  will  endure.  For  there  was  never  gift  thereof 
made  to  the  curate,  whereby  any  property  might  grow  unto 
him.  And  a  case  much  like  to  their  sayings  is  in  the  9  Ed- 
ward IV., f  where  an  action  of  trespass  was  brought  for 
taking  away  such  a  coat  armour,  etc.  And  there  some  were 
o(  opinion,  that  the  action  la}'  well,  howbeit  the  case  is  not 
judged  ;  but  whatsoever  the  law  be  therein,  I  think  it  be 
no  great  doubt,  but  that  if  a  statute  be  made  that  they 
should  belong  to  the  executors,  that  the  interest  of  the  curate, 
whatsoever  he  had  thereto  before  by  prescription,  constitu- 
tion, or  otherways,  were  determined  ;  and  so  methinketh 
that  the  parliament  ma}'  as  directly  make  a  law  concerning 
such  mortuaries  as  it  may  do  of  any  other  temporal  goods 
within  the  realm  ;  and  then  as  to  the  number  of  priests  and 
clerks,  that  should  be  bidden  to  such  burials,  I  think  that 
the  parliament  may  well,  upon  a  certain  pain,  prohibit,  that 
none  shall  call  to  such  a  burial  above  a  certain  number  of 
priests  and  clerks  to  be  assigned  by  the  parliament  after 
the  degree  of  him  that  is  buried  ;  and  especially  to  prohibit, 
that  none  shall  give  any  money,  or  other  reward,  to  any 
above  that  number,  though  they  come  uncalled.  For  such 
statutes  be  for  ordering  of  temporal  things,  and  to  force  that 
the  king's  subjects  should  not  be  charged  but  as  the  parlia- 
ment should  think  expedient  for  the  wealth  ot  the  realm,  and 
therefore  they  are  to  be  observed  in  law  and  conscience. 
And  thus  I  have  shewed  the  part  of  my  conceit,  what  me- 
thinketh concerning  the  said  mortuaries. 

Doct.  I  thank  thee  for  the  pain  thou  hast  taken  therein: 
and  since  thou  hast  somewhat  touched  what  the  parlia- 
ment may  do  in  these  mortuaries,  which  concerneth 
somewhat  the  spirituality,  I  pray  thee  that  thou  wouldest 
shew  me  somewhat  more  of  thy  mind,  what  the  parliament 

5  1  Burn's  Ecc  Law,  343;  3  Inst.  no. 
t  3  Inst.   202. 


308  Doctor  and  Student. 

may  do  in  other  things  concerning  the  spirituality  ;  fori  think 
it  were  good  and  necessary  to  be  known  for  the  good  ordei 
of  conscience  of  many  persons,  and  the  appeasing  of  many 
and  great  diversities  of  opinion  in  this  realm. 

Stud.  To  treat  of  this  matter  at  length,  it  would  ask  a 
great  time  ;  but  I  shall  with  good-will  briefly  touch  some 
articles  thereof,  and  haply  thou  shalt  by  them  know  the 
better  what  the  parliament  may  do  concerning  the  spiritual 
jurisdiction  in  other  cases  like.  But  I  pray  thee  take  me 
not,  that  my  meaning  is,  that  I  would  that  such  statutes 
should  be  made  as  I  shall  speak  of;  for  I  do  it  not  to  that 
intent,  but  only  to  shew  the  power  of  the  parliament  what 
they  may  do  if  they  list  to  execute  their  power. 

Chap.   II. —  What  the  -parliament  may  do  concerning  the 
spirituality  and  the  spiritual  jurisdiction,  and  what  not. 

Stud.  I  suppose  it  may  be  enacted  by  the  parliament,  that 
no  lands,  nor  other  inheritance,  shall  hereafter  be  given  into 
mortmain  by  licence,  nor  without  licence,  but  that  all  feoff- 
ments, fines,  leases,  and  recoveries  by  covin,  or  by  assent 
of  the  parties  hereafter  made,  or  had  for  mortmain,  shall  be 
void  and  that  the  house  shall  take  no  interest  by  it  ;*  but 
that  it  shall  remain  still  with  the  feoffors  or  givers,  or  to 
such  other  use  as  the  parliament  shall  appoint.  For  like  as 
the  parliament  may  ordain,  that  all  feoffments  and  fines, 
made  to  any  manner  of  person,  shall  be  void,  and  that  every 
man  shall  stand  still  seised  of  his  land  without  making  of 
any  alteration  of  posession  thereof  to  any  other,  more 
stronger  it  may  ordain,  that  no  alteration  of  possession 
shall  be  made  into  mortmain.  And  that  a  statute  may 
be  made  that  there  shall  be  no  alteration  of  possession 
made  of  lands  to  no  man,  it  may  appear  by  the  words  of 
John  Gerson,  in  his  treatise  of  Contracts,  the  6th  considera- 
tion, where  he  says  thus:  "Contracts  be  not  therefore 
precisely  to  be  said  unlawful  and  void,  because  they  may 

♦Ante,  200,  210. 


Dialogue   II. — Chap.  3.  309 

be  redeemed  by  the  law  made  for  such  redemption.  For 
he  sayeth,  '  That  they  that  would  say  so,  would  condemn 
the  high  maker  of  laws,  that  is  God  himself:'  which  in  the 
judicial  law  given  by  Moses  to  the  Jews  (as  the  text  is 
open)  Levit.  xxv,  willeth,  'That  he  that  selleth  his  in- 
heritance may  redeem  it:  and  if  he  redeem  it  not,  yet  it 
should  return  again  in  the  year  of  Jubilee :'  for  it  is  there 
said  to  the  Jews  thus  :  'AH  the  region  of  your  possession 
shall  he  sold  under  the  condition  of  redemption.'  And 
though  that  law  bindeth  not  now  christian  people,  yet  a 
like  law  thereto  might  be  made  by  christian  princes,  which 
then  by  that  new  institution  ought  to  be  observed  and  kept, 
as  divers  of  the  said  judicials  have  been  in  many  countries." 
Thus  far  be  the  words  of  John  Gerson.  And  methinketh, 
that  if  a  law  might  be  made,  that  if  a  man  sell  his  land, 
that  he  may  nevertheless  redeem  it  within  certain  years, 
whether  the  buyer  will  or  no,  though  no  such  condition 
were  spoken  of  at  the  making  of  the  bargain  :  that  like 
reason  is  that  a  law  may  be  made,  that  there  shall  be  no 
sales,  but  that  ever}-  man  shall  continually  stand  still  seised 
ot  his  lands,  as  I  have  said  before.  And  I  suppose  verily 
that  such  a  statute  should  be  good  and  profitable,  as  well 
for  them  that  have  such  lands  in  mortmain  as  for  many 
other.  And  Basdus  de  Perusio  saith,  that  such  a  statute 
should  be  good  to  prohibit  that  no  lands  should  come  into 
mortmain,  but  not  to  prohibit  that  no  goods  should  come 
into  mortmain.  And  methinketh  his  saying  is  good  and 
reasonable. 

Chap.   III. —  What  the  -parliament  may  do  concerning  the 
spirituality,  and  what  not. 

Stud.  I  think  also  that  the  king  by  parliament  may 
break  all  appropriations  that  be  made  against  any  statute, 
or  against  the  good  order  of  the  people,  or  against  the 
commonwealth;  and  the  cause  is  this:  there  can  be  no 
church  appropriated,  but  that  the  patronage  of  the  advow- 
son  thereof  must  be  given  before  the  appropriation  to  the 


310  Doctor  and  Student. 

abbot,  or  prior,  or  other,  to  whom  the  propriation  shall  be 
made,  and  to  their  successors,  for  if  it  be  given  but  for  term 
of  lite,  the  appropriation  cannot  stand  in  effect  but  for  term 
of  lite.*  And  because  the  advovvson  is  a  temporal  inherit- 
ance, therefore  it  is  under  the  power  of  the  parliament  to 
order  it  as  it  seeth  cause,  and  to  bring  it  again  to  be 
presentable  as  it  was  first :  and  in  likewise  if  a  man  bring  a 
writ  of  right  of  advowson  against  him  that  hath  such  an 
advowson  appropried  to  his  house,  and  recovereth  the 
advowson,  the  appropriation  is  dissolved  :  for  the  appro- 
priation can  no  longer  continue  than  they  have  the  patron- 
age. And  the  parliament  may  leave  the  advowson  to  the 
house,  as  an  advovvson  presentable  if  they  see  cause  ;  or 
they  may  give  it  to  the  first  giver,  or  otherwise  dispose  it, 
as  the  matter  requirelh.  And  under  such  manner  all  the 
vicarages  that  were  unyed,  annexed,  or  appropried  from 
the  first  year  of  king  Richard  II.,  unto  the  parliament  holden 
in  the  fourth  year  of  king  Henry  IV.,  were  disapproved. f 
And  by  the  same  statute  of  Henry  IVth  it  is  enacted,  That 
all  vicarages  appropriated  after  the  statute  made  in  the 
fifteenth  year  of  king  Richard  against  the  form  of  the 
statute,  shall  be  disappropried,  except  the  vicarage  of  Had- 
denham  in  the  diocese  of  Ely,  as  in  the  said  statute  ap- 
peareth.  But  yet  I  suppose,  that  the  parliament  may  not 
make  an  appropriation  without  spiritual  assent ;  ne  I  mean 
not  that  it  were  good  that  all  appropriation  should  be 
broken  ;  but  I  have  spoken  this  to  show  what  authority  the 
parliament  hath  if  they  would  execute  it;  and  if  there  be 
a  reasonable  consideration  why  it  is  done,  then  the  disap- 
propriation holdeth  as  well  in  conscience  as  in  the  law. 
And  good  it  is,  that  the  authority  of  parliament  be  known 
in  this  behalf  to  the  intent  that  it  may  cause  them  the  rather 
to  observe  such  statutes  as  be  already  made  of  such  ap- 
propriations, and  to  dispose  some  part  of  the  fruits  thereof 
among  the  poor  parishioners,  according  to  the  statute  of  the 

*  Ante,  189. 
fPlow.  495. 


Dialogue  II. — Chap.   4.  311 

15  Rich.  II.  made  in  that  point.  And  it  were  asked  them, 
why  they  have  not  observed  the  said  statute,  they  have  none 
other  excuse,  but  either  to  say  that  they  knew  not  the  stat- 
ute, or  else  that  the  statute  had  no  power  to  bind  them  to 
it.  And  I  suppose  verily  that  neither  of  those  sayings  can 
be  any  reasonable  excuse  unto  them  in  that  behalf.* 

Chap.   IV. —  Concerning  the  power  of  the  parliament  as 
against  the  spirituality. 

Stud. ,  All  the  sanctuaries  in  England, |  as  well  in 
churches  as  other, %  and  also  where  a  man  shall  have  his 
clergy,  and  where  not,  be  under  the  power  and  authority 
of  the  parliament. 

Doct.  I  suppose  that  it  is  by  the  spiritual  authority  that 
a  man  shall  be  defended  by  a  sanctuary,  or  have  his  clergy. 

Stud.  Nay  verily,  but  by  the  old  customs  and  maxims  of 
the  law  of  the  realm  ;  and  therefore  the  king's  justices  shall 
judge  where  a  man  shall  have  sanctuary  or  his  clergv,  and 
where  not.  And  if  the  ordinary  will  not  come  to  receive 
them  that  be  clerks,  the  king's  justices  may  set  a  fine  upon 
him.  And  also  the  king's  pardon  shall  discharge  one,  both 
of  the  sanctuary,  and  out  of  the  bishop's  prison  ;  and  so  it 
appeareth  that  the  bishops  have  the  keeping  of  such  as  be 
admitted  to  their  clergy  by  authority  of  the  king's  laws,  and 
not  by  their  own  authority. §  And  though  the  title  of  sanct- 
uary, and  the  liberty  where  a  man  shall  have  his  clergv,  be 
under  the  power  of  the  parliament,  yet  the  parliament  hath 
not  broken  nor  extended  his  whole  power  on  .them,  to  put 
them  generally  away. 

Doct.  Mig'nt  the  parliament  break  a  sanctuarv  that  is 
granted  by  the  pope? 

Stud.  The  pope  by  himself  may  make  no  sanctuary  in 

*  For  further  information  relating  to  appropriations,  see  I   Burn's  Ecc 
Law,  title  Appropriation. 
t  Ante,  93,  J40. 

J  Sanctuary  is  now  abolished  hv  stat  21  Jac«   1,  c  -S. 
§  See  stat.  18  L'liz  ,  c.  7.  and  4  B.  C.  362. 


312  Doctor  and  Student. 

this  realm  :  but  if  the  king  and  the  pope  together  do  it,  the 
old  custom  cf  the  realm  serveth,  as  most  men  say,  that  it 
is  good.  But  yet  if  the  king  after  that  grant,  by  authority 
of  his  parliament  avoid  his  own  grant,  then  remaineth  but 
only  the  pope's  grant ;  and  that  sufllceth  not  to  make  a 
sanctuary,  as  I  have  said  before  :  but  the  parliament  with- 
out the  pope  may  make  a  sanctuary,  with  such  penalties  as 
they  shall  think  convenient  to  set  upon  the  breakers  thereof. 
But  if  the  pope  do  after  confirm  that  sanctuary,  and  grant 
that  no  man  under  the  pain  of  the  censures  of  the  church 
do  break  it,  it  is  the  stronger,  howbeit  the  sanctuary  taketh 
his  full  strength  in  that  case  as  to  the  law  by  the  parliament. 

Chap.   V. —  Concerning  the    pozver    of   the    parliament 
against  the  spirituality. 

Stud.  I  suppose  also,  that  the  parliament  may  assign  of 
the  trees  and  grass  in  church-yards  either  to  the  parson,  to 
the  vicar,*  or  to  the  parish  if  they  see  cause  :  for  though  it 
be  hallowed  ground,  yet  the  freehold  thereof,  the  trees  and 
herbs  are  things  temporal,  as  they  were  before  the  hallow- 
ing ;  and  that  the  parliament  hath  power  to  order  them  (as 
is  said  before)  it  appeareth  by  a  statute  that  is  called  Ne 
rector  prostemat  arborcs  in  ccemctcrio,  35  Edvv.,  stat.  2, 
that  is  to  say,  the  statute  against  persons,  that  they  shall 
not  cut  down  trees  in  the  church-yards.  In  which  statute 
it  is  recited,  thai  the  soil  of  the  church-yard  (which  in  the 
laws  of  England  is  called  the  freehold)  belongeth  to  the 
church  :  and  then  the  statute  goeth  farther,  and  prohibited! 


*  As  the  law  now  stands,  if  there  is  a  rector  only,  or  a  vicar  only  of  the 
church,  the  trees  and  grass  belong  to  him;  but  if  there  is  both  rector  and 
vicar  in  the  same  church,  it  is  doubtful  to  which  of  them  they  belong. 
Linwood  seems  to  think  the  rector  has  the  property  in  them,  unless  they 
are  otherwise  assigned  in  the  endowment  of  the  vicarage.  Lind.  267. 
Hut  this  is  mere  conjecture.  In  short,  there  appears  to  he  no  direct  au- 
thority one  way  or  tin-  other.  In  Bellamy's  case,  in  the  spiritual  court, 
where  the  vicar  sued  t lie  parson  impropriate  for  cutting  down  trees,  the 
point  to  which  of  the  two  the  trees  did  belong  was  indeed  considered;  but 
the  case  at  last  went  off  upon  another  ground,  so  that  the  right  was  not 
determined.     2  Roll.  Abr.  337. 


Dialogue   II. — Chap.  5.  313 

all  persons,  that  they  shall  not  fell  them,  but  it  be  for  nec- 
essary reparations  of  the  chancel,*  but  that  they  shall   let 
them  stand  still   to  defend  the  church   from  the  great  tem- 
pestuous winds  and  weather.     And  then  it  seemeth,  that 
like  as  the  parliament  hath  authority  to  prohibit  persons, 
that  they  shall  not   fell  the  trees  in  the  church-yard  when 
they  would,  that  it  hath  authority  as  well  to  take  the  whole 
property  of  the  trees  from  them  if  they  see  cause,  and  that 
they  may  give  them  to  the  parish,  if  there  be  reasonable 
consideration  to  move  tbem   to  it.     And  yet   nevertheless 
the  judges   for  a  church-yard  will  most  commonly  put  the 
court  out  of  jurisdiction,  and  remit  it  to  the  spiritual  law,  to 
determine  to  whom  it  belongeth  of  right ;  but  I  take  that  to 
be  by  a  custom,  and  a  favor  of  the  law,  and  not  of  a   mere 
right,  as  of  the  law  of  God.      And  therefore  if  the  parlia- 
ment would  ordain,  that  the  right  of  church-yards,  and  of 
all   things  in  them,  should  be  tried  in   the  king's  courts,  I 
think    the    statute    might  well  do  it.     But,  as    I    have  said 
before,  the  parliament  will  not  extend  their  power  to  many 
things,  that   they   might  do  if  they   would    (I    think),  and 
especially  in  these  matters  they  will  not.     And   surely  as 
well  the  parliament  as  the  king's  courts,  of  the  king's  bench 
and  common  pleas,  and  all  the  common  law  (as  1  suppose) 
have  been  and  be  as  favourable  to  the  spiritual  jurisdiction, 
as  well   in  such   church-yards,   tithes,  offerings,   and   such 
other,  as  any  law  hath   been  ;   insomuch  that  in   the  king's 
bench   and   common   pleas  they  will   sutler   no  issue   to  be 
joined,  especially  betwixt  person  and  person,  whereby  the 
right  of  tithes  might  be  tried  ;  howbeit  that  in  the  exchequer 

*  It  seems  that  the  rector  or  vicar  may  cut  them  clown  to  repair  the 
parsonage  or  vicarage  house,  or  the  pews  belonging  to  either.  He  may 
likewise  take  botes  for  repairing  the  barns  and  outhouses  belonging  to  the 
house.  And  Lindwood  says,  if  the  nave  of  the  church  wants  repairing, 
the  rector  or  vicar  will  do  well  not  to  be  difficult  in  granting  leave  to  cut 
clown  a  tree  or  two  fir  that  use.  Lind.  267-  But  if  the  trees  arc  cut 
down  for  any  other  purposes,  the  persons  cutting  them  down  may  be  re- 
s trainee  by  injunction.  2  Atk.  217.  May  ba  indicted  upon  the  statute  35 
Ed.  1  ;  11  Co.  49.  May  be  sued  in  an  action  of  trespass  at  common  law. 
2  Roll.  Abr.  337.     Or  be  proceeded  against  in  the  spiritual  court. 


314  Doctor  and  Student. 

some  time  they  have  done  otherwise.  And  for  a  farther 
proof,  that  the  parliament  may  order  a  church-yard,  and 
trees  and  grass,  as  is  aforesaid,  some  make  this  reason  ; 
the}-  say  it  is  enacted  by  the  statute  15  of  Rich.  II.,  ch.  5, 
that  lands  that  be  made  church-yards,  and  be  hallowed  and 
made  burials  without  licence  of  the  king  and  chief  lords,  shall 
be  in  case  of  mortmain  :  and  they  say,  that  of  that  it  follow- 
ed"), that  if  the  king  or  lord  enter,  for  that  the  church-yard 
was  made  against  the  statute,  that  the  hallowing  thereby  is 
annulled,  for  else  (they  say)  the  statute  should  be  void. 
And  it  the  statute  have  power  to  annul  the  hallowing,  made 
against  the  statute,  they  say  more  stronger  it  may  order  the 
trees  and  grass  that  be  growing  upon  it,  because  they  be 
temporal,  as  is  said  before.  And  in  that  case  if  the  lord 
enter  by  reason  of  the  statute,  and  the  person  putteth  him 
out,  and  the  lord  bring  assise,  and  the  person  pleadeth,  that 
it  is  a  church-yard,  and  demand  judgment,  if  the  court  will 
hold  plea  thereof,  and  then  the  lord  sheweth  how  he  entered 
by  iorce  of  the  said  statute,  and  pleadeth  in  certain  ;  that 
is  a  good  plea  to  give  the  court  jurisdiction.  And  thus  I 
suppose  verily  that  the  parliament  may  order  the  trees  and 
grass  in  a  church-yard,  as  I  have  said,  and  yet  the  ground 
to  remain  still  hallowed,  as  it  did  before. 

Chap.   VI.  —  Concerning   the  pozver   of  the  parliament 
against  the  spirituality. 

Stud.  I  suppose  also,  that  it  may  be  enacted  by  authority 
of  parliament,  that  if  a  spiritual  man  sutler  his  houses  to 
decay  and  die  :  that  his  successor  shall  have  remedy  in  the 
king's  court,  against  his  executors,  and  that  it  may  be  pro- 
hibited, that  no  suit  of  dilapidation  should  be  hereafter  taken 
in  the  spiritual  court,  for  it  is  brought  to  have  amends  for 
the  waste  and  decay  done  in  houses  by  his  predecessor, 
which  is  all  temporal,  and  belongeth  to  the  king's  courts,  as 
wastes  and  trespass  do.  And  howbeit,  that  no  action  lieth 
for  the  successor  in  such  case  for  the  waste  at  the  common 


Dialogue  II. — Chap.  6.  315 

law  :*  yet  that  is  not  sufficient  to  prove,  that  an  action  may 
lie  therefore  at  the  spiritual  laws  :  for  if  a  person  of  a 
church  make  a  lease  for  term  of  years,  and  the  lessee  cloth 
waste,  in  that  case  the  person  shall  have  no  remedy  at  the 
common  law,  and  yet  he  shall  not  therefore  have  any  rem- 
edy at  the  spiritual  law.j"  And  also  in  divers  statutes  it  ap- 
peareth,  that  if  a  man  have  judgment  in  the  spiritual  law 
to  do  penance,  as  is  enjoined  him,  that  the  judges  spiritual 
may  not  turn  that  penance  into  money,  unless  the  party  will 
freely  ask  it  ;|  lest  they  might  by  that  means  give  judgment 
of  temporal  things.  And  if  they  may  not  turn  penance 
into  money,  but  by  the  free  will  of  the  party  ;  then  more 
stronger,  they  may  not  hold  plea  in  this  matter,  where  none 
other  thing  is  in  variance  but  waste  of  houses,  and  where 
are  demanded  damages,  as  was  in  the  prohibition  of  waste 
at  the  common  law  :  and  therefore  some  men  say,  that  a 
'praemunire  facias,  or  a  prohibition  lieth  in  this  case,  at 
this  day,  if  the  grounds  of  the  law  were  thoroughly  looked 
upon  ;§  howbeit,  because  of  the  custom  so  long  used  and 
suffered  to  the  contrary,  peradventure  it  were  not  good  to 
alter  the  law  therein  without  parliament;  but  they  think 
verily  that  the  parliament  may  well  alter  it ;  and  to  enforce 
their  reason  they  say,  that  since  the  court  christian  may  not 
by  the  law  award  damages  for  beating  of  a  clerk,  but  only  put 

*  Actions  have  been  and  may  be  brought  upon  the  custom  of  the  real  n 
in  the  king's  court  for  dilapidations.     3  Lev.  26S;   Cart.  244. 

t  Ante,  101 . 

Jin  the  days  of  popei  v  the  ecclesiastics  for  a  little  advantage  ".vere  used 
to  enjoin  pecuniary  penances,  and  to  demand  them  as  their  just  dues. 
Whereupon  the  statute  of  articuli  clert,  9  Ed.  2,  st  1,  c  2,  was  made, 
which  entirely  prohibited  this  practice;  but  further  provided,  that  it  pre- 
lates enjoined  corporal  penance,  and  the  party  to  be  punished  would  upon 
his  own  accord  redeem  such  psnance  for  money,  it  should  be  allowed. 
By  virtue  therefore  of  this  provision,  money  may  be  taken  as  a  commuta- 
tion for  corporal  penance,  and  if  it  is  not  paid,  a  suit  may  be  instituted  lor 
it  in  the  spiritual  court.      4  B.  C  217. 

§  It  is   most    clear,  that    a    prohibition  will   not   lie,  as    the   eccles 
court  has  undoubted  cognizance  of  dilapidations,  and  may  decree  satisfac- 
tion to  be  made  for  them  out  of  the  ecclesiastical  or  patrimonial  goods   of 
the  person  suffering  such  dilapidations.     Lind.   250;  Gibson,  753;  3  B. 
C  9a. 


3  1 6  Doctor  and  Student. 


him  to  penance  for  laying  violent  hands  upon  the  clerk,  that 
more  stronger  they  may  not  in  this  case  award  damages  for 
the  waste,  that  is  nothing  else  but  a  temporal  offence.* 

Chap.  VII. —  Concerning  the  authority  of  the  -parliament 
and  the  spirituality. 

Stud.  If  it  were  ordained  by  statute,  that  no  priest  should 
wear  any  cloth  made  out  of  the  realm,  nor  above  such  a 
price,  upon  a  certain  pain,  or  that  chaplains  shall  not  take 
above  so  much  lor  their  salary,  I  suppose  that  these  statutes 
were  good,  because  ihey  concern  the  ordering  of  temporal 
things  ;  but  to  appoint  the  fashion  of  their  garments,  or 
their  tonsure,  it  is  more  doubt  whether  the  parliament  may 
set  pain  upon  it  or  not. 

Doct.  It  hath  not  been  seen,  that  any  penal  statutes  have 
been  made  by  parliament  concerning  apparel  of  the  clergy 
in  this  realm,  for  that  hath  always  been  ordered  by  the  con- 
vocation, f  And  also  it  appeareth  in  the  statute  made  in  the 
36  Edw.  III.,  c.  84  that  when  default  was  found  by  the 
commons  for  excessive  wages  of  chaplains,  that  the  parlia- 
ment did  not  order  the  wages,  but  the  king  and  his  lords, 
at  the  petition  of  the  commons,  moved  the  archbishop  of 
Canterbury  thereof;  and  thereupon  he  and  other  bishops 
afterward  informed  the  parliament,  that  they  had  set  the 
wages  in  certain,  and  that  no  chaplain  should  take  more 
than  they  had  appointed,  upon  a  pain  by  them  limited  ;  and 
if  any  spiritual  men  gave  more,  etc.,  they  to  forfeit  the 
double  to  certain  uses  by  the  convocation  appointed.  And 
that  no  chaplain  should  remove  from  one  diocese  to  another 
without  letters  of  the  ordinary,  from  whose  diocese  they  re- 
moved. And  it  was  then  ordained  by  the  parliament,  thai 
no  temporal  man  should  give  more  wages  than  the  bishops 

*  2  Inst.  492  ;  ante,  303. 

fTlie  principal  canons  which  respect  the  habit  of  clergymen  are  a  con- 
stitution of  Archbishop  Stratford,  in  the  year  134.3,  'n  tne  reign  of  king 
Edward  the  Third,  and  the  74th  canon  of  the  canons  in  the  year  1603. 

\  Post.  317;  repealed. 


Dialogue   II. — Chap.  7.  317 

had  assigned,  upon  pain  to  forfeit  as  much  to  the  king,  as 
in  the  said  statute  appeareth.  And  also  the  statute  willeth 
farther,  that  he  that  findeth  him  grieved  against  that  ordi- 
nance, shall  have  his  remedy  in  the  chancery  ;  but  it  ap- 
peareth not,  that  there  should  be  any  remedy  thereupon  at 
the  common  law. 

Stud.  The  virtue  of  spiritual  men,  and  the  favour  of  the 
realm  to  them,  and  their  wisdom,  policy,  and  high  author- 
it}-  be  and  have  been  great  in  this  realm,  whereby  many 
things  have  been  forborne,  that  might  lawfully  have  been 
done,  as  I  suppose.  And  in  the  statute  made  in  the  3  Hen. 
V.  wages  of  chaplains  were  set  in  certain  by  the  parliament : 
and  truth  it  is,  that  by  the  said  statute  of  36  Edw.  III.,*  ch. 
9,  it  is  enacted,  That  whosoever  findeth  him  grieved  against 
the  said  ordinance,  made  of  the  said  wages,  shall  have 
remedy  in  the  chancery,  as  thou  sayest ;  and  therefore  it 
followeth  thereupon,  that  if  chaplains  may  by  authority  of 
the  parliament  be  lawfully  put  to  answer  in  the  chancery 
before  the  chancellor,  which  sitteth  there  only  by  the  king's 
authority,  that  they  may  as  well  upon  a  reasonable  cause 
be  put  to  answer  by  authority  of  the  parliament  after  the 
process  of  the  common  law. 

Doci.  Bv  subpoena,  which  is  the  process  used  in  chan- 
cery, the  person  shall  not  be  arrested,  but  be  only  warned 
to  appear. I  And  it  is  directly  against  the  canons,  that  a 
priest  should  be  arrested,  and  peradventure  at  the  making 
of  the  said  statute,  the  parliament  had  respect  thereto,  and 
thought  it  reasonable,  that  they  should  rather  be  put  to  an- 
swer in  chancery,  where  their  bodies  should  not  be  ar- 
rested, than  at  the  common  law,  where  they  might  be  ar- 
rested.$ 

Stud.  Though  the  person  shall  not  be  arrested  by  a  sub' 
fevna,  yet  if  he  appear  not  in  the  end  he  shall  be  proclaimed 
rebel,  and  then  thereupon  his  body  shall  be  arrested. §     And 

♦These  statutes  are  repealed  by  21  Jac  ,  c  28. 
T3B.  C.  443- 

X  See  Statutes  50  Ed.  3,  c-  5,  and  1  R.  2,  c.  15. 
§  3  B.  C.  444. 


31 8  Doctor  and  Student. 

also  if  the  party  will  not  perform  the  judgment  given  upon 
the  suhpcena,  there  is  none  other  execution  in  the  Chancery, 
but  to  commit  him  to  prison  till  he  have  performed  it  ;*  and 
therefore  (as  it  seemeth)  the  parliament  regarded  not  that 
point.  Wherefore  I  suppose  rather,  that  the  statute  was 
made  as  to  that  article  upon  this  consideration,  that  because 
upon  a  decree  made  by  the  convocation,!  there  lieth  no 
action  at  the  Common  law,  but  at  the  Spiritual  law,  and 
because  this  matter  concerned  giving  of  wages,  which  were 
things  temporal,  it  was  thought  reasonable  that  the  offenders 
against  the  decree  made  in  the  convocation,  should  be  put 
to  answer  in  the  Chancery,  which  is  the  king's  court :  bul 
it  might  as  well  have  been  enacted,  that  they  should  have 
been  put  to  answer  at  the  Common  law  as  in  the  Chancery, 
if  the  parliament  would,  as  I  suppose.  But  to  that  point, 
that  thou  hast  spoken  of  before,  that  it  is  against  the  canons 
of  the  church,  that  a  priest  should  in  i\ny  cases  be  arrested.  J 
The  Common  law  pretendeth,  that  the  king,  as  in  the  right 
of  his  crown,  and  by  his  Common  laws,  hath  that  authority, 
and  so  it  is  daily  put  in  execution.  And  if  the  Common 
law  be  so  already,  then  there  needeth  no  statute  to  be  made 
of  it.  Nevertheless,  because  our  intent  now  at  this  time  is 
to  speak  only,  what  the  parliament  may  do  concerning  the 
spirituality,  and  what  not,  therefore  I  will  no  farther  speak 
of  that  matter  but  only  this,  that  if  there  be  offence  in  them, 
that  execute  the  Common  law  therein,  that  it  is  a  great 
marvel,  that  spiritual  men  have  done  no  more  to  reform  it, 
than  they  have  done;  and  if  there  be  no  offence  therein, 
then  were  it  good,  that  it  were  so  openly  known,  that  all 
scrupulosity  of  conscience  might  be  avoided.  For  as  it 
standeth  now,  there  resteth  in  some  persons,  that  execute 
the  law  therein,  a  doubt  in  conscience;  and  by  reason  of 
th;.t  doubt  they  offend,  that  should  not  offend,  if  the  mat- 
ter were   plainly   declared.     For   then    would   they   either 


•■  i  Ilarr.  Chan.  Prac.  316. 
f  Dav.  70. 
J  Ante,  317. 


Dialogue   II. — Chap.    8. 


3'9 


clearpy  cease,  or  else  proceed  according  to  the  law  with 
good  authority. 

Chap.  VIII. — Concerning  the  authority  of  the  -parliament 
and  the  spirituality. 

i  Stud.  If  there  were  a  schism  in  the  papacy,  who  were 
right  wise  pope,  the  king  in  his  parliament,  as  the  high 
sovereign  over  the  people,  which  hath  not  only  charge  on 
the  bodies,  but  also  on  the  souls  of  his  subjects,  hath  power 
for  the  quietness  and  surety  of  his  realm  to  ordain  and  de- 
termine, who  shall  be  in  this  realm  holden  for  right  wise 
pope,  and  may  command,  that  no  man  spiritual  nor  temporal 
shall  name  any  other  to  be  pope,  but  him  that  is  so  authorised 
in  the  parliament ;  nor  sue  to  any  other  as  pope,  but  onlv 
to  him.  And  a  statute  of  like  effect  was  made  in  the  2 
Rich.  II.,  ch.  7,*  where  pope  Urban  was  adjudged  in  the 
parliament  to  be  lawfully  chosen  pope.  And  the  parlia- 
ment, for  appeasing  divisions  that  might  rise  in  the  realm 
by  such  a  schism  in  the  papacy,  may  set  a  remedv  ;  why 
then  may  not  the  king  and  his  parliament  in  like  wise,  as 
well  to  the  strength  of  the  faith,  and  to  the  health  of  the 
souls  of  many  of  his  subjects,  as  to  save  his  realm  from  being 
noted  of  heresy,  search  the  cause  of  such  division  as  is  now 
in  the  realm  by  diversities  of  sects  and  opinions  ;  and  to 
know  also  by  whom,  and  by  what  occasion  the  noise  hath 
arisen,  that  there  should  be  so  many  heresies  in  this  realm 
as  are  noted  to  be  :  and  whether  there  be  such  heresies  or 
not,  and  not  to  put  any  to  answer*  thereupon  after  the  pro- 
cess of  the  law ;  but  charitably  to  examine  the  truth 
therein,  and  thereupon  by  their  wisdoms  to  devise  some 
charitable  way  for  unity  and  peace.  And  great  re- 
ward shall  they  have  of  God,  that  put  their  hands  to 
avoid  the  great  danger  that  is  like  to  fall  to  many  souls, 
as  well  of  men  spiritual  as  temporal,  if  this  division  con- 
tinue long.  And  as  far  as  I  have  heard,  all  the  articles 
that    be    misliked    in    this    behalf,    sowneither   against   the 

•Post.  320;  obsolete. 


320  Doctor  and  Student. 

worldly  honour,  worldly  power,  or  worldly  riches  of 
spiritual  men  ;  but  to  express  the  articles  I  hold  it  not  most 
expedient.  And  verily  if  it  be  true  that  some  have 
reported,  many  of  them  be  so  far  against  the  truth,  that  I 
suppose  no  christian  man  will  hold  them,  believing  them  to 
be  true  :  but  that  they  do  it  for  some  other  consideration. 
And  though  they  do  not  well  in  that  doing,  how  good 
soever  the  consideration  be,  for  no  evil  is  to  be  done  that 
good  should  follow  ;  yet  they  do  not  so  evil,  as  if  they  held 
them,  believing  them  also  to  be  true  ;  nor  it  will  not  be  so 
hard  to  remove  them  from  it,  as  it  would  be,  if  they  did 
believe  them  indeed.  For  if  it  be  so,  that  they  believe 
them  not,  then  the  cause  removed,  it  is  to  think,  that  they 
would  be  lightly  reformed  :  and  therefore  if  it  were  ordained 
for  a  law,  that  every  curate  at  the  death  of  every  of  their 
parishioners,  should  say  for  their  souls  in  audience  Placebo 
and  D/'rige,  and  mass,  without  taking  any  thing  therefore  :* 
and  that  they  should  also  at  a  certain  time,  there  to  be 
assigned  by  parliament,  as  it  were  once  in  a  month,  or  as 
shall  be  thought  convenient,  do  in  likewise,  and  pray 
especially  for  the  souls  of  their  parishioners,  and  for  all 
christian  souls,  and  for  the  king  and  the  whole  realm  :f 
and  religious  houses  to  do  after  the  same  manner,  I  sup- 
pose, that  in  short  time  there  would  be  but  few,  that  would 
say,  there  were  no  purgatory.  And  in  likewise  if  it  were 
ordered  so  by  the  pope,  that  there  might  be  certain  general 
pardons  of  full  remission  in  divers  parts  of  the  realm,  which 
the  people  might  have'  for  saying  certain  orisons  and 
prayers,  without  paying  any  money  for  it,  it  is  not  unlike, 
but  in  short  time  there  would  be  very  few,  that  would  lind 
any  default  at  pardons  :$   for  verily  it  is  a  great  comfort  to 


*  Ante,  221. 

f  Ante,  31,  20S. 

X  In  the  dark  ages  of  ignorance  and  superstition,  the  Pope  had  great 
power  in  the  management  of  affairs  both  civil  and  ecclesiastical  here  in 
England.  The  title  he  assumed,  and  which  was  thought  to  belong  to  him, 
was  that  of  vicat  general  under  God.  His  decrees  were  considered  as  just, 
and  his  opinions  infallible.     In  short,  he  was  looked  up  to  as  one  that  had 


Dialogue   II. — Chap.   8.  321 

all  christian  people  to  remember,  that  our  Lord  loved  his 
people  so  much  that  he  would  to  their  relief  and  comfort, 
leave  behind  him  so  great  a  treasure,  as  is  the  power  to 
grant  pardons  :  which,  as  I  suppose,  next  unto  the  treasure 
ol  his  precious  body  in  the  sacrament  of  the  altar,*  may  be 
accounted  among  the  greatest.  And  therefore  he  laboured 
greatly  to  his  own  hurt,  and  to  the  great  heaviness  of  all 
other  also,  that  would  endure  himself  to  prove,  that  there 
was  no  power  left  by  God.  And  I  suppose  verily  that  if 
such  free  pardons  were  granted  (as  I  have  spoken  of 
before)  and  that  then  other  pardons  were  afterward  granted, 
to  have  the  aid  of  the  people  for  some  charitable  cause,  as 
to  resist  the  Turk,  or  such  other,  that  the  people  would  as 
diligently  receive  those  pardons  to  be  partakers  of  the  good 
deed,  as  they  would  be,  if  there  were  no  such  free  pardons 
granted  before.  And  I  think  verily,  that  if  the  king's 
grace,  and  his  parliament,  look  not  upon  these  matters,  it 
will  be  hard  to  tell  who  shall  be  able  to  do  it.  And  under 
this  manner  Naitanus,  king  of  Picts,  took  great  labour  and 
diligence  for  the  appeasing  of  the  division  and  variance, 
that  was  amongst  his  subjects  (as  well  spiritual  as  tem- 
poral) for  the  due  time  of  keeping  the  Easter.  For  some 
men   in   that  variance  kept  Easter,  when  other  kept  Palm 

a  right  to  do  and  say  just  what  he  pleased.  Of  this  power  the  Pope  did  not 
fail  to  make  a  handle.  He  turned  it  entirely  to  his  own  pecuniary  advantage, 
and  the  henefit  of  the  holy  see;  so  that  it  is  scarcely  to  be  believed  what 
large  sums  of  money  were  drained  annually  out  of  this  kingdom  in  the 
purchase  of  bulls,  indulgences,  etc.  However,  this  trade  was  too  shock- 
ing to  be  endured  in  any  state  but  that  of  absolute  ignorance  and  blind  de- 
votion. Accordingly,  when  letters  began  to  flourish,  and  the  minds  of 
Englishmen  were  by  degrees  enlightened  by  learning  and  the  sciences, 
they  soon  perceived  that  the  tyranny  and  encroachments  of  papal  Rome 
were  horrid  in  the  extreme.  They  therefore  began  to  oppose  them:  and 
oppose  them  they  did,  with  such  firmness  and  success,  aided,  no  doubt,  by 
the  hand  of  providence,  that  in  the  happy  and  pious  reign  of  Elizabeth  the 
reformatio:!  was  ciTected,  an  sera  which  gave  a  fatal  blow  to  the  papal 
power  both  as  to  religion  and  government  within  this  realm. 

*  See   stat.  30  Car.   2,  cap.  1,  which  requires   a  declaration  against  the 
doctrine  of  transubstantiation.  . 

21 


211  Doctor  and  Student. 

Sunday;  and  that  was  seen  some  time  in  one  house.*  In 
which  schism  many  great  clerks  and  holy  men  were  of 
several  opinions,  insomuch  that  the  blessed  man  Saint 
Aidan,  which  was  a  holy  bishop,  erred  long  in  the  due 
time  of  keeping  of  Easter,  and  had  many  followers,  and 
yet  was  he  no  heretic.  For  that  that  he  did  therein,  he  did 
with  meekness,  and  as  he  thought  stood  according  to  the 
truth  :  and  therefore  there  was  but  little  offence  in  him. 
For  appeasing  of  this  schism, f  the  said  king  Naitanus  sent 
messengers  to  Saint  Colfrid,  then  being  abbott  of  the  mon- 
asteries of  Saint  Peter  and  Paul,  that  be  upon  the  rivers  of 
Tyne  and  Tweed,  and  whereas  venerable  Bede  was 
brought  up,  to  be  instructed  in  the  due  time  of  keeping 
Easter,  and  of  the  tonsure  of  clerks,  which  was  then  also 
in  variance,  whereupon  the  said  holy  man  Colfrid  wrote  a 
letter  unto  the  said  king  Naitanus,  declaring  unto  him,  by 
many  authorities  of  scripture,  the  very  due  time  of  keeping 
Easter,  and  shewed  his  mind  also  in  the  said  tonsures  :  and 
when  the  said  letter  was  read  before  the  king  and  his  lords, 
and  that  the  tenure  thereof  was  plainly  interpretate  and  de- 
clared unto  him,  he  rose  up  from  among  his  lords,  and 
kneeled  down  upon  his  knees,  and  thanked  Almighty  God, 
that  had  sent  him  such  a  gift  out  of  the  country  of  England. 
And  it  is  not  to  think,  that  he  did  this,  intending  to  give 
sentence  therein  by  his  own  authority,  for  that  belonged 
not  to  him,  but  he  did  it  to  know  the  truth,  and  that  he 
might  thereupon  shew  his  favour  to  the  better  part.  And 
if  the  king's  grace  would  in  this  case  endeavour  himself  to 
know  the  truth  of  the  cause  of  this  division,  I  suppose  that 
he  shall  in  some  article  shew  his  favour  to  the  one  part, 
and  in  some  other' article  to  the  other  part.  Also  when  the 
heresy  of  Enticetis^  rose  at  Constantinople,  which  erred  in 
the  Trinity,  the  blessed  man  Saint  Theodore,  then  arch- 

*  Vide  the  statute  24  Geo.  2,  c.  23,  s.  3,  which  points  out  the  time  when 
the  feast  of  Easter  shall  be  celebrated,  in  conformity  to  a  decree  of  the 
council  of  Nice.    » 

t  Ante,  32. 

J  Ante,  195. 


Dialogue   II. — Chap.  8.  323 

bishop  of  Canterbury,  to  the  intent  he  would  keep  the 
church  of  England  from  that  error,  gathered  all  the  clergy 
together,  and  examined  them  diligently  what  they  thought 
concerning  the  articles  of  the  heresy  :  and  when  he  found 
them  all  stedlast  in  the  catholick  faith,  he  wrote  a  letter  of 
their  belief;  and  for  instruction  of  them  that  should  come 
after,  sent  it  to  Rome  ;  and  the  effect  of  his  letter  was  this  : 
"We  believe  and  constanlh'  confess  after  holy  fathers, 
to  he  verily  and  truly,  the  Father,  the  Son,  and  the  Holy 
Ghost,  a  Trinity  in  Unity,  and  a  Unity  consubstantial  in 
Trinity,  that  is,  one  God  in  three  persons  consubstantial  of 
equal  glory  and  honour."  And  among  other  things  that 
he  wrote,  which  pertained  to  the  faith,  he  said  afterward-; 
"We  also  accept  the  holy  and  universal  sine  synodals  of 
holy  fathers  :  and  we  accept  and  glorify  our  Lord  Jesu 
Christ  as  they  glorified  him,  nothing  adding  or  diminishing ; 
and  we  glorify  God  the  Father  without  beginning,  and  his 
only  Son  gotten  of  the  Father  before  the  worlds,  and  the 
Holy  Ghost  proceeding  of  the  Father  and  the  Son,  so  as 
they  cannot  be  spoken  as  they,  that  we  have  remembered, 
the  holy  apostles  and  prophets  and  doctors  have  preached 
and  taught.  And  methinketh,  that  these  examples  should 
somewhat  encourage  them,  that  now  may  do  good  in  this 
evil  and  perilous  time,  to  follow  somewhat  alter,  and  every 
man  after  his  degree  is,  to  do  the  best  that  he  can  therein 
to  help  it,  not  regarding  worldly  honour,  worldly  riches, 
nor  singular  profit :  but  only  the  honour  of  God,  and  the 
love  of  their  neighbours,  and  health  of  their  souls.  And 
if  they  do  so,  undoubtedly  the  work  shall  prosper  well  in 
their  hands.  And  let  no  man,  that  may  do  good  in  this 
matter,  suffer  it  to  over  pass  as  though  it  pertained  not  to 
him  :  for  Almighty  God  hath  given  a  commandment  to 
every  man  upon  his  neighbour.  And  to  encourage  them- 
selves yet  the  more  unto  it,  let  them  remember  the  words, 
that  be  spoken  in  the  first  book  of  the  Revelations  of  Saint 
Bridget,  the  58th  chapter,  where  our  Lord  Jesu,  among 

*  Ante,  195. 


324  Doctor  and  Student. 

other  things,  said  to  our  lady  thus  :  "I  would  (said  he)  if  it 
were  possible,  suffer  for  every  man  such  a  pain  as  I  once  suf- 
fered for  all  men  upon  the  cross,  so  that  they  might  come  to 
the  inheritance  promised."  Happy  be  they  then,  that  help 
souls  to  that  inheritance,  that  our  Lord  desired  so  much  to 
have  them  come  unto.  And  sometime  it  hath  been  brought 
about  by  fair  means,  that  could  not  be  done  by  rigour  and 
■compulsion.  And  if  my  lords  and  masters  spiritual  will 
needily  forthwith  their  streight  corrections  and  punishments, 
without  finding  some  provision,  that  the  minds  of  the  peo- 
ple may  somewhat  be  eased,  in  such  things  as  they  have 
misliked  and  grudged  at  in  times  past ;  it  is  to  fear  that  there 
will  not  follow  so  good  fruit  of  it  as  there  would  do,  if  they 
would  do  it ;  and  that  they  would  shew  themselves  evidently 
to  do  nothing  but  only  of  a  zeal  and  love  unto  the  people* 
And  it  is  a  doubt  to  some  men;  whether  some  of  the  things 
that  the  people  mislike  and  find  default  at,  be  occasions  act- 
ive or  passive  to  the  people  to  offend  :  but  whether  they  be 
the  one  or  the  other,  charity  would  (as  it  seemeth)  that  some 
diligence  should  be  put  to  amove  them,  though  percase  they 
were  not  evil  but  indifferent,  or  peradventure  good  of  them- 
self. 

Chap.   IX. — Concerning  the  authority  of  the  parliament 
and  the  spirituality. 

Stud.  If  it  were  enacted  by  the  parliament,  that  if  a  man 
call  another  a  thief  or  a  murderer,  that  an  action  should  lie 
thereupon  at  the  Common  law,  and  that  no  suit  should  lie 
thereupon  at  the  Spiritual  law  ;*  I  think  it  were  a  good  stat- 
ute, for  the  matters  whereupon  the  words  rise  are  only  to 
be  determined  by  the  Common  law.f      And  so  it  is  if  a  man 

*  i  Roll.  Abr.  74;  Cro.  Jao  214. 

•|  But  calling  a  man  whoremaster,  2  Salk  £92  ;  a  cuckold,  3  Cro.  no;  a 
cuckoldy  knave,  Cro.  Car.  399;  or  calling  a  woman  a  whore,  2  Salk.  696; 
Goul^b.  172;  Ld.  Raym.  1136  (except  in  London  and  Southwark) ;  a  jilt, 
a  strumpet,  Str.  823;  or  a  bawd,  is  only  suable  in  the  spiritual  court.  So 
likewise  the  defaming  of  a  clergyman  in  any  point  relating  to  the  dis- 
charge of  his  office,  is  properly  triable  in  the  spiritual  court,  as  lo  call  him 
an  adulterer  or  an  heretic.     1  Cro.  502,  94. 


Dialogue   II. — Chap.  io. 


32S 


call  another  villain,  an  action  lieth  thereon  at  Common  law 
if  he  be  free,*  and  not  at  the  Spiritual  law;  because  the 
right  of  the  villainage  may  not  be  tried  but  at  the  Common 
law  ;  and  most  men  say,  that  if  there  be  an  indictment  of 
felon}-  at  the  Common  law,  that  then  there  lieth  no  suit 
thereof  in  the  Spiritual  law,  so  that  there  needeth  no  stat- 
ute to  be  make  in  that  point. 

Doct.  If  a  statute  were  made,  that  an  action  should  lie 
at  the  Common  law  of  such  words  as  a  man  hath  any  loss 
or  worldly  hindrance  by,  though  they  have  before  time  been 
used  to  be  sued  only  in  the  spiritual  court,  thinkest  thou, 
the  statute  were  good  ? 

Stud.  I  think  the  statute  were  good  ;  and  most  commonly 
upon  such  words  some  worldly  loss  or  hindrance  one  way 
or  other  doth  follow  ;  but  I  think  that  in  those  cases  the 
parliament  may  not  prohibit,  but  that  they  that  list  may  also 
take  their  suits  at  the  Spiritual  law,  if  they  will,  so  that  the 
Spiritual  law  make  no  recompence  to  the  party. f  Also  of 
all  annuities,  whether  they  have  beginning  by  prescription, 
composition  real  or  otherwise,  I  suppose  it  may  be  enacted, 
that  the  suit  shall  be  taken  only  in  the  king's  court,  and  not 
in  the  spiritual  court,  for  nothing  is  to  be  recovered  in  such 
suits  but  money,  which  is  temporal  in  whose  hands  soever 
it  come,  spiritual  to  temporal.! 

Chap.  X. —  Concerning  the  authority  of  the  -parliament 
as  to  the  spirituality. 

Stud.   If  it  were  enacted,  that  no  religous  person  should 

*  Since  villainage  is  taken  away,  it  should  seem  that  no  action  can  lie 
for  calling  another  villain. 

f-The  Ecclesiastical  Court,  as  we  have  seen  before,  cannot  in  any  case 
award  damages.  Ante,  316,  and  see  Wats.,  c.  30.  For  defamatory  words, 
per.ance  is  enjoined  at  the  discretion  of  the  ordinary.  2  Burn's  Eel  Law, 
124. 

%  When  a  parson  sues  in  the  Spiritual  court  for  a  pension  or  an  annuity, 
claimed  by  prescription,  it  is  the  safest  way  for  him  to  libel  generally  as  in 
the  common  case  ol  a  pension,  and  not  to  lay  a  prescription,  for  if  he  goes 
upon  a  prescription,  and  the  prescriptive  right  comes  in  question,  a  pro- 
hibition will  issue.     Strange,  S79,  Dr.  Gouche  v.  The  Bishop  of  London.. 


J26  Doctor  and  Student. 

receive  into  the  habit  of  their  religion  any  child  under  a 
certain  age  to  be  appointed  by  the  parliament,  and  that  after 
this  entry  he  should  not  be  removed  from  the  place  that  he 
was  received  in  within  a  year  after  upon  a  certain  pain, 
without  assent  of  his  friends ;  I  think  it  were  a  good  stat- 
ute ;  for  that  statute  should  not  prohibit  entry  into  religion. 
For  if  it  did  so,  I  suppose  it  were  not  to  be  observed  :  but 
it  ordereth  the  manner  of  entry  into  religion  for  such  infants 
which  is  right  expedient  for  the  commonwealth  ;  and  a  stat- 
ute of  like  effect  is  made  for  the  four  orders  of  friars  in  the 
4  Hen.  IV..*  where  the  four  provincials  of  the  said  four 
orders  were  sworn,  b}'  laying  their  hands  upon  their  breasts 
in  open  parliament,  to  observe  the  said  statute.  And  upon 
the  same  grounds  some  say,  that  if  it  were  enacted,  that  no 
man  upon  a  certain  pain  should  affie  the  daughter  in  her 
farther's  house,  without  assent  of  the  father,  it  were  a  good 
statute  ;  and  yet  a  statute  hath  no  authority  to  prohibit,  nor 
to  confirm  no  right  of  matrimony  ;  but  as  the  church  pro- 
hibited it,  or  contirmeth  it.  And  therefore  if  it  were  pro- 
hibited, that  no  lord's  son  should  affie  an  husbandman's 
daughter,  or  such  other,  and  if  he  did,  the  affiance  to  be 
void,  I  think  that  statute  were  void.  But  if  the  statute  were, 
that  no  lord's  son,  upon  a  pain,  should  make  affiance  with 
any  woman,  that  is  a  stranger  born,  without  the  king's 
licence,  I  think  that  statute  were  good  :  for  it  prohibiteth 
not  matrimony,  but  setteth  an  order  after  what  manner  it 
shall  be  made,  and  that  under  such  form  as  may  haply  be 
necessary  for  the  surety  of  the  realm.  And  of  a  like  effect 
thereto  is  the  law,  that  the  king's  widow  shall  not  marry 
without  the  king's  licence,  and  that  she  shall  be  sworn 
thereto  in  the  Chancery  when  she  is  endowed.  And  like 
law  is  also,  that  the  lord  shall  have  the  marriage,  or  the 
value  of  the  marriage  or  sometimes  the  double  value  of  the 
marriage  of  his  ward  by  knight's  service,  f  And  also  if  a 
man  marry  a  bond  women  without  licence,  the  lord  by  the 

*  Ante,  32,  20S. 
f  Ante,  26. 


Dialogue   II. — Chap.    io.  327 

Common  law  shall  have  an  action  of  trespass  against  him 
that  marrieth  her.  And  all  these  laws  be  good,  for  merely 
they  prohibit  not  marriage,  no  more  should  a  statute  do  foi 
entry  into  religion  :  as  me  seemeth.  For  it  prohibited!  not 
entry  into  religion  ;*  but  it  prohibiteth  that  none  should  be 
received  into  the  habit  before  his  years  of  discretion,  and 
that  after  his  entry  he  shall  be  ordered  in  such  manner,  that 
if  he  will  after  be  professed  it  shall  rise  of  his  own  free  will, 
and  of  a  love  to  serve  God,  and  not  by  any  sinister  means, 
nor  coloured  persuasions. 

Also,  as  I  suppose,  the  parliament  may  well  enact,  that 
every  man  that  hath  the  profit  of  any  offering,  by  recourse 
of  pilgrims,  shall,  upon  a  certain  pain,  not  only  set  up  cer- 
tain tables  to  instruct  the  people  under  what  manner  they 
shall  worship  the  saints,  but  also  to  cause  certain  sermons 
to  be  made  there  yearly  to  instruct  the  people,  how  they 
shall  worship  them,  so  that  through  ignorance  and  disor- 
dering of  themself,  they  do  not  rather  displease  the  saints 
than  please  them. 

It  may  also  prohibit,  that  no  miracle  shall  be  noised  upon 
so  light  occasions  as  they  have  been  in  some  places  in  time 
past.  And  they  shall  not,  upon  a  certain  pain,  be  set  up 
as  miracles  nor  be  noised,  nor  reported  as  miracles  by  no 
man,  till  they  be  proved  for  miracles,  under  such  manner 
as  by  the  parliament  shall  be  appointed.  And  it  is  not  un- 
like, but  that  many  persons  grudge  more  at  the  abuse  of 
pilgrimages  than  at  the  self-pilgrimages.  And  in  likewise 
of  divers  other  articles,  if  the  truth  were  groundly  searched. 
And  under  this  manner  it  hath  been  already  enacted  b}' 
parliament,  to  the  strength  of  the  faith,  that  no  man  shall 
presume  to  preach  without  licence  of  the  diocesan,  except 
certain  persons  excepted  in  the  statute,  as  appeareth  in  the 
second  year  of  king  Hen.  IV. f  And  under  this  man- 
ner the  parliament  may  ordain  many  good  laws  for  strength 
of  the  faith,  and   for  the  good   order  of  all   the  people,  as 

*  Ante,  245. 

t  Repealed  by  25  Ed.  3,  c.  14;   1  H.  6,  c.  12;   1  Eliz.,  c.  1 ;  29  Car.  2,  c.  9. 


328  Doctor  and  Student.' 

well  spiritual  as  temporal,  though  it  judge  not  upon  the 
fight  of  things  that  be  mere  spiritual.  And  all  these  di- 
versities, and  many  other  more  than  I  can  rehearse  now, 
they  that  be  learned  in  the  laws  of  the  realm  be  especially 
bounden  to  know,  that  they  may  instruct  the  parliament 
when  need  shall  require,  what  they  may  lawfully  do  con- 
cerning the  spiritual  jurisdiction,  and  what  not.  And  there- 
fore spiritual  men  are  bound  charitably  to  hear  their  opin- 
ions therein,  and  what  they  think,  be  immediately  grounded 
upon  the  law  of  God,  or  upon  the  law  of  reason,  and  what 
not.  For  commonly  the  parliament  hath  over  those  laws 
no  direct  power,  but  to  strengthen  them,  and  to  make  them 
to  be  more  surely  kept  it  hath  good  power.  And  if  spirit- 
ual men,  and  temporal  men,  would  charitably  lay  their 
heads  together,  and  fully  determine  what  the  parliament 
may  do,  as  well  concerning  the  spiritual  jurisdiction  as  the 
temporal,  taking  these  additions  as  little  titleings,  whereby 
they  by  their  wisdom  may  call  to  their  remembrance  greater 
things,  so  that  hereafter  it  shall  not  stand  in  the  case  as  it 
doth  now,  that  when  the  parliament  hath  made  a  law  con- 
cerning the  spirituality,  that  spiritual  men  shall  not  say, 
it  bindeth  not  in  conscience,  as  many  have  done  in  time 
past,  and  vet  do  to  this  day  :  I  think  verily  that  there 
would  nothing  do  more  good  to  appease  such  variances, 
schisms,  and  divisions  as  be  now  abroad  in  the  realm.  And 
then  also  would  all  men,  as  well  spiritual  as  temporal,  rather 
take  heed  to  themself,  to  see  that  they  did  nothing  to  give 
occasion  to  the  parliament  tq  extend  his  power  upon  them 
or  their  possessions,  than  to  resist  or  deny  the  authority  of 
the  parliament. 

Chap.  XI. —  Concerning  the  authority  of  the  parliament 
and  the  spirituality. 

Doct.  Whether  may  the  parliament  prohibit,  that  no 
ordinary  upon  a  certain  pain  shall  admit  none  to  the  order 
of  priesthood,  except  he  be  sufficiently  learned? 

Stud.  I  am  in  doubt  in  this  question,  and  the  thing  that 


Dialogue   II. — Chap.    ii.  329 

causeth  me  to  doubt  therein  is  this,  if  it  were  enacted,  as 
thou  sayest,  and  after  an  action  were  brought  upon  the 
penalty,  and  the  ordinary  would  plead,  that  he  that  was 
made  priest  was  sufficiently  learned  ;  and  thereupon  an 
issue  were  joined,  that  issue  should  be  tried  by  twelve  men, 
and  as  it  seemeth,  it  were  not  reasonable,  that  twelve  men, 
which  commonly  be  unlearned,  should  try  whether  a  man 
were  sufficiently  learned  to  be  a  priest,  for  they  have  no 
knowledge  therein.  And  therefore  if  any  such  penalty 
should  be  set  by  parliament,  it  seemeth  that  it  must  be 
farther  enacted,  that  if  the  issue  were  joined  (as  is  said  be- 
fore) that  then  it  should  be  tried  by  spiritual  men,  or  tem- 
poral men  that  be  sufficiently  learned  thereto,  or  by  both. 

Doct.  But  thinkest  thou  then,  that  the  parliament  may 
ordain,  that  spiritual  men  shall  be  compelled  to  pass  upon 
inquests?  It  seemeth,  that  were  against  the  law  ot  God, 
and  against  the  perfection  of  their  order,  and  to  break  them 
from  the  devotion  of  contemplation,  that  is  requisite  to 
them.  For  Saint  Paul  saith  in  his  second  espistle  to 
Timothv,  the  second  chapter:  iiJ\Temo  millions  Deo,  im- 
-plicat  se  negotiis  secular /bus ;  that  is  to  say,  "  Let  no  man 
that  hast  set  himself  to  serve  God,  intryke  himself  in  secu- 
lar business."  Which  words  be  specially  spoken  of  priests. 
And  therefore  it  seemeth,  he  should  do  against  the  say- 
ing of  Saint  Paul,  that  would  compel  priests  to  go  upon  in- 
quests. 

Stud.  Verily  there  is  a  writ  in  the  Register*  (which  is  a 
book  of  the  law  of  England)  that  no  sheriff  shall  impanel 
any  priests  upon  any  inquest,  and  that  writ  may  every  priest 
have,  that  will  sue  for  it.  And  I  think  right  well,  that  that 
W'it  is  grounded  upon  the  law  of  the  realm  :  taking  in  that 
point  his  effect  upon  the  law  of  God.f  And  therefore  I 
think,  that  the  parliament  may  not  enact,  that  priests  should 
go  universally  •  upon  inquests;  but  to  enact,  that  in  this 
special  case,  which  is  not  mere  temporal,  but  to  enquire  of 

-Reg.  179. 

fLamb.  Just.  369;  Trials  per  Pais,  S6. 


olo  Doctor  and  Student. 

the  sufficiency  of  learning,  and  that  to  a  good  and  neces- 
sary purpose,  I  suppose  the  parliament  may  assign  them  to 
it  without  breaking  the  liberty  of  the  church.  And  so  they 
be  man}'  times  upon  a  writ  to  enquire  dc  jure  -patronatus, 
where  priests  and  laymen  shall  be  joined  together  to 
enquire  of  the  right  of  the  patronage.*  And  methinketh, 
they  might  do  in  like  case  here,  either  by  themself,  or  to  he 
joined  with  laymen. f 

Doct.  There  they  be  called  by  the  authority  of  the 
ordinary,  and  here  they  should  be  called  by  the  temporal 
authority. 

Stud.  Whether  they  be  called  by  spiritual  authority > 
or  by  temporal  authority,  their  business  is  all  one.  For  as 
great  let  is  it  to  devotion  and  contemplation,  when  they  be 
called  thereto  by  the  bishop,  as  when  they  be  called  thereto 
by  the  king.  And  though,  as  thou  sayest,  the  bishops 
shall  command  to  appear  in  that  case,  yet  it  is  by  the 
king's  law,  that  he  shall  do  so  :  which  law  the  convocation 
may  not  alter  nor  change,  but  the  parliament  might  change 
it  with  a  cause  :  for  it  pertaineth  to  the  ordering  ot  temporal 
inheritance,  that  is  to  say,  to  the  ordering  the  patronage, 
and  of  presentments  of  advowsons,  which  be  temporal. 

Doct.  I  can  in  no  wise  see  how  it  may  stand  with  the  law 
of  God,  that  the  parliament  should  compel  spiritual  men  to 
go  upon  inquest.  And  therefore  if  such  a  statute  should  be 
made,  the  inquest  must  be  taken  all  of  temporal  men,  that 
have  sufficient  learning  thereto  :  and  yet  I  regard  not  this 
point  so  much  in  this  question,  as  I  do  that  the  matter  of 
itself  is  so  mere  spiritual,  that  the  parliament  hath  no  power 
to  set  any  pain  upon  it.  For  as  it  seemeth,  if  it  might  do 
that,  it  might  as  well  set  a  pain  upon  the  tonsures  of  clerks, 
or  upon  the  order  of  the  service,  or  what  use  they  should 
keep,  and  that  I  suppose  thou  thinkest  it  may  not,  and  me- 
thinketh it  may  no  more  do  it  in  this  case. 

*  So  they  may  be  joined  with  laymen  in  mandates  for  inquisitions  to  be 
made  of  dilapidat  ons  of  houses  or  other  things  belonging  to  ecclesiasti 
cal  benefices.     Lind.  254. 

t  Vin.  Abr.,  title  Presentation. 


Dialogue  II. — Chap.   12.  331 

Stud.  I  think  well  it  be  as  thou  sayest  in  those  cases  : 
but  in  this  case,  that  is  so  necessary  for  the  good  order  of 
the  king's  subjects,  and  for  the  commonwealth,  methinketh 
they  may,  for  if  curates  have  virtue  and  cunning,  com- 
monly the  people  be  virtuous,  and  virtue  is  the  most  chief 
and  principal  branch  of  the  commonwealth.  And  there- 
fore for  increase  thereof,  methinketh  that  the  parliament  may 
well  set  a  pain,  although  there  were  no  spiritual  law  made 
in  that  point  before,  as  well  as  it  may  of  infants,  that  be  re- 
ceived into  the  habit  of  religion,  whereof  mention  is  made 
before  in  the  tenth  addition.  But  in  this  case,  since  the 
spiritual  law  is  ahead)',  that  none  shall  be  made  priests,  but 
they  that  be  sufficiently  lettered,  methinketh  that  the  par- 
liament may  much  more  the  rather  do  it.*  And  therefore, 
if  the  people  would  not  assent  to  keep  an  holiday,  that  were 
ordained  by  the  church,  I  suppose  that  the  parliament  if 
they  thought  it  reasonable  to  be  kept,  might  set  a  pain  upon 
all  them  that  would  not  obey  unto  it.  And  that  it  might  do 
likewise  upon  all  other  laws,  that  be  made  by  the  cjiurch 
for  the  good  order  of  the  people,  though  it  might  not  per- 
case  make  a  new  law  in  the  self  points,  for  that  should  not 
be  a  breaking  of  the  liberty  of  the  church,  but  rather  an 
affirmance  of  it. 

Doct.  I  feel  thy  conceit  well ;  howbeit  I  cannot  fully  as 
yet,  assent  unto  it:  and  therefore  I  pray  thee  give  me  a 
sparing  therein,  and  at  a  better  leisure,  I  shall  with  good- 
will shew  thee  farther  of  my  mind  therein.  And  now  I 
will  ask  thee  another  question. 

Chap.  XII. —  Concerning  the  authority  of  the  parliament 
and  the  spirituality. 

Doct.  It  was  asked  of  me  but  late,  if  certain  waste  ground, 
whereof  was  never  any  profit  taken,  and  that  lay  within  no 
parish,  but  in  some  forest,  or  that  is  newly  won  from  the 
sea,  were  brought  into  arable  land,  whether  the  parliament 

*Ante,  1S9. 


33* 


Doctor  and  Student. 


might  appoint,  who  should  have  the  lithe  thereof;  and  he 
that  asked  me  the  question  thought  it  might.  I  pray  thee 
shew  me  thy  conceit,  what  thou  thinkest  therein? 

Stud.  I  think  that  if  the  freehold  be  in  the  king,  that  he 
may  assign  .the  tithes  thereof  to  whom  he  will:  and  if  the 
freehold  be  in  a  common  person,  that  he  may  do  likewise.* 
But  then  I  think,  that  if  that  common  person  do  not  assign 
the  tithes  so,  as  it  may  stand  conveniently  to  the  mainte- 
nance of  the  service  of  God,  that  the  parliament  may  doit, 
and  order  the  tithes  to  the  increase  of  God's  service,  as  they 
shall  think  convenient. 

Doc/.  I  cannot  see  how  the  parliament,  nor  yet  the  party 
should  have  authority  to  meddle  with  tithes,  that  be  spiritual, 
and  p  rtain  alway  to  the  spiritual  jurisdiction.  And  there- 
fore I  suppose,  that  in  this  case  the  archbishop,  as  sover- 
eign head  over  the  spirituality,  should  in  this  case  have  the 
ordering  of  the  tithes,  as  things  spiritual  to  whom  none 
other  hath  right:  and  neither  the  king  nor  no  common 
person. 

Stud.  Though  tithes  be  spiritual,  yet  the  assignment  of 
the  tithes  to  other  is  a  temporal  act,  which  the  parliament 
with  a  cause  may  order,  as  it  may  do  all  temporal  things 
within  the  realm  :  and  that  the  king,  or  any  other,  that 
hath  the  freehold  of  such  waste  grounds  as  be  in  no  parish, 
may  assign  the  tithes  thereof  to  whom  they  will,  it  may 
appear  thus  :  Before  parishes  were  divided, f  and  before 
that  it  was  ordained  by  the  law  of  the  church, £  that  every 

*  i  Roll.  Abr.  657;   2  Inst.  647 

f  For  the  a?ra  of  the  division  of  parishes,  see  1  B.  C  m  ;  3  Burn's  Eel. 
Law,  p.  59;  2  Wils.  182. 

Jit  is  probable  the  author  alludes  here  to  the  council  of  Lateran,  Anno 
Domini  1179,  Anno  25  II.  2,  which  has  often  been  mistaken  by  many  of 
our  ancient  authors  to  be  the  time  when  this  law  was  made.  The  fact  is, 
that  tithes  were  not  assigned  to  any  spiritual  person  or  church  in  partic- 
ular before  the  year  1200,  which  is  twenly-one  years  after  the  council  of 
Lateran  was  held.  In  the  year  1200,  Pope  Innocent  the  Third  wrote  a  de- 
cretal epistle  dated  at  Lateran  ;  the  purport  of  which  was,  that  for  the 
time  to  come  the  tithes  of  all  parishes  should  be  paid  to  the  persons  having 
curam  ammarum  in  the  respective  parishes.  This  epistle  was  thought 
very  reasonable  and  just,  and  accordingly  was  well  received,  and  became 


Dialogue   II. — Chap.    12.  233 

man  should  pay  his  tithes  to  his  own  church  ;*  every  man 
might  have  paid  his  tithes  to  what  church  he  would,  and 
might  one  year  have  given  it  to  one  church,  and  another 
year  to  another  ;|  or  have  granted  them  to  one  church  for 
ever  if  he  would.  And  like  as  every  man,  before  the  said 
severing  of  parishes,  might  have  given  his  tithes  to  what 
church  he  would,  because  he  was  bound  to  no  church  in 
certain  :  so  may  they  do  now,  that  have  lands  that  lie  in  no 
parish  ;  for  they  be  at  liberty  to  assign  them  to  what  church 
they  will,  as  all  men  were  before  the  said  law  made,  that 
tithes  should  be  paid  to  the  proper  church.  And  if  the 
archbishop  should  have  right  to  them,  because  no  man  can 
of  right  claim  them,  then  before  the  said  law  made,  arch- 
bishops had  right  to  all  the  tithes,  within  their  provinces  : 
for  no  man  had  right  to  any  tithes,  but  by  the  assignment 
of  the  owners.  And  therefore  if  the  freehold,  in  this  case 
that  thou  hast  put,  be  in  the  king,  then  he  shall  assign  the 
tithes  where  he  will  :  and  in  like  wise  of  other  of  his  sub- 
jects, as  I  have  said  before. 

Doct.  Thou  speakest  in  this  case  as  thou  were  learned 
in  the  Spiritual  law,  for  these  matters  pertain  thereto, %  and 
not  to  the  laws  of  the  realm. 

Stud.  I  speak  therein  according  to  the  old  law  and  cus- 
tom of  the  realm,  which  yet  continueth  in  such  places,  as 
be  out  of  any  parish,  as  it  did  before  parishes  were  limited, 
and  before  the  said  law  was  made,  that  tithes  should  be  paid 
to  their  proper  churches  :  and  that  there  is  such  a  custom, 
partly  it  appeareth  in  a  case,  that  is  in  the  laws  of  England, 

in  process  of  time  part  of  the  law  of  the  land.  It  was  this  decretal  then 
which  ordained  that  every  man  should  pay  tithes  to  his  own  church;  and 
the  circumstance  of  its  being  dated  at  Lateran  appears  to  be  the  founda- 
tion of  the  mistake  I  have  mentioned  above-     See  2  Inst.  641. 

*  Post.  335. 

tin  this  opinion  Lord  Coke,  Hobart,  and  many  other  respectable  law- 
yers concur  with  our  author;  but  Dr.  Prideaux  differs  from  him.  See 
Prid.  302. 

%  By  the  canon  law,  all  tithes  arising  in  an  extra-parochial  place  belong 
to  the  bishop  of  the  diocese  in  which  the  place  lies.     2  Inst.  647. 


334  Doctor  and  Student. 

which  happened  long  time  since  the  said  law  was  made, 
that  tithes  should  be  paid  to  their  proper  churches. 

Doct.   I  pray  thee  shew  me  what  case  that  is. 

Stud.  In  the  twenty-second  year  of  king  Edward  the 
third,  in  the  book  of  Assise  it  appeareth,  that  the  king 
granted  the  tithes  of  certain  asserts,  that  were  newly  taken 
out  of  the  forest  of  Rock,  to  a  provost,  and  he  thereupon 
brought  a  Scire  facias  against  divers,  that  took  the  said 
tithes,  returnable  into  the  Chancery  ;  and  there  exception 
was  taken,  that  the  suit  pertained  to  the  spiritual  court,  and 
not  to  the  Chancery  :  and  it  was  answered  again,  that  that 
was  to  be  understood,  where  the  suit  was  taken  against 
them  that  ought  to  pay  the  tithes,  and  not  where  it  was 
brought  against  them,  that  were  wrongful  takers  of  the 
tithes.  And  thereupon  the  defendants  were  put  to  answer, 
and  pleaded  to  an  issue,  which  was  sent  down  into  the. 
King's  Bench  to  be  tried  according  to  the  law,  and  there 
the  defendants  made  default :  whereupon  the  plaintiffs 
prayed  execution.  And  in  this  case  Thorpe  said,  "That 
the  old  law  hath  been  alway,  that  the  king  in  such  case 
should  assign  the  tithes  where  he  would."  And  that  say- 
in^  I  take  to  be  understood,  where  the  freehold  is  in  the 
king,  as  I  have  said  before.  And  though  the  said  case  be 
not  judged,  yet  it  appeareth  thereby,  that  the  king  made 
assignment  of  tithes,  which  was  admitted  to  be  good,  so 
that  the  parliament  shall  not  need  to  meddle  therein,  unless 
it  be  his  pleasure  to  assign  them  by  authority  of  his  parlia- 
ment :  as  he  may  do,  if  he  will,  to  make  his  letters  patents 
to  be  of  the  mere  higher  record  than  they  should  be  with- 
out the  parliament. 

Doct.  Truth  it  is,  that  the  king  and  other  owners  and 
possessionem  of  land  sometime  paid  their  tithes  to  what 
church  they  would  ;*  but  when  it  was  ordained  by  the 
church,  that  tithe  should  be  paid  to  their  own  church,  then 
the  people  were  bounden  by  that  ordinance  to  pay  them  ac- 
cording, and  so  they  did  ;  and  therefore  if  there  were  a  law 

*  Ante,  333. 


Dialogue  II. — Chap.    12.  335 

made  now  by  the  church  of  such  particular  tithes,  as  yet 
remain  still  out  of  any  parish,  that  they  should  be  paid  to 
the  parish  next  adjoining,  or  to  the  ordinary,  or  to  the 
metropolitan,  or  in  such  other  manner  as  the  church  should 
think  reasonable  ;  methinketh  it  were  a  good  law,  and  ought 
to  be  obeyed  as  well  of  the  particular  tithes,  as  it  was  first 
of  all  tithes  generally.  And  if  the  church  may  make  a 
law  therein,  then  methinketh  the  parliament  should  have 
no  power  to  make  any  law  therein. 

Stud.  When  the  church  had  ordained,  that  the  tithes  of 
every  man  should  be  paid  to  their  own  church,  and  the 
people  received  that  law,  and  paid  their  tithes  according  : 
then  by  that  assent  the  law  was  confirmed  :  and  if  the 
church  would  not  have  made  that  law,  I  think  the  parlia- 
ment might :  for  it  was  for  the  rest  and  quietness  of  all  the 
people  :  and  then  none  might  have  refused  that  law  so  made 
by  parliament  :  but  to  the  law  made  by  the  church  some 
did  not  obey,  but  paid  their  tithes  to  other  churches  as  they 
did  before.  And  those  churches  unto  this  day  have  good 
right  to  those  tithes,  as  portions  belonging  to  their  churches, 
though  the  ground  lie  not  within  their  parish  ;*  and  so  hath 
the  king  and  the  owners  and  possessors  of  such  waste 
grounds,  J  that  be  out  of  all  parishes  at  this  day,  good  right 
to  assign  the  tithes  thereof,  where  they  will.f  For  as 
to  those  grounds  they  never  received  any  law  to  the  con- 
trary :  and  so  I  think  it  bindeth  them  not  in  that  behalf. 
And  no  more  should  any  new  law  do,  that  were  made  by 
the  church  of  such  tithes,  nor  pull  the  liberty  from  them  to 
assign  them  where  they  will,  without  their  assent.  And 
where  thou  sayest,  that  if  the  church  may  make  a  law  of 
a  thing,  that  then  the  parliament  hath  no  power  to  make 
any  law  therein,  I  think  that  ground  holdeth  not ;  for  if  the 

~2  Black.  Com.  29. 

t  Ante,  331. 

%  See  now  the  stat.  2  and  3  Ed.  6,  c  13,  by  which  it  appears  that  the  tithes 
of  cattle  depasturing  in  a  waste  or  common  extra-parochial,  or  if  the  par- 
ish is  unknown,  are  to  be  given  to  the  parson  of  the  parish  where  the 
owner  dwells.     2  Inst  651. 


32&  Doctor  and  Student. 

church  would  grant  a  dismes  to  be  paid  to  the  king,  it  were 
well  granted  :  but  if  they  would  not,  the  parliament  may. 
And  in  like  wise  though  the  church  hath  made  a  law,  that 
curates  should  be  resident  upon  their  benefices  ;*  yet  the 
parliament  also  hath  made  a  law,  that  they  shall  be  so,f 
and  both  laws  stand  in  good  strength  and  effect,  as  I  sup- 
pose. And  in  like  wise  it  is  of  the  statute  of  usury, J  which 
was  made  in  the  tenth  year  of  king  Henry  the  Seventh. 

Chap.  XIII.  —  Concerning1  the   ■pozver  of  the  parliament 
and  the  spirituality. 

Doct.  Whether  may  the  parliament  prohibit,  that  none 
ordinary,  nor  none  other,  that  hath  power  to  visit,  shall  not 
take  any  money  or  pension  of  the  houses  or  places,  that 
they  visit,  at  their  visitation. 

Stud.  I  think  the  parliament  hath  good  power  to  do  it. 
For  the  money  that  they  receive,  though  it  be  given  by 
occasion  of  a  spiritual  thing,  is  temporal,  and  is  under  the 
power  of  the  parliament,  as  all  temporal  lands  and  goods 
be.  And  if  there  be  a  cause  reasonable  why  they  should 
make  that  prohibition,  then  it  bindeth  as  well  in  conscience 
as  it  doth  in  the  law  :  and  an  example  is  thereof  by  probate 
of  testaments.  For  though  the  probate  be  a  thing  spiritual, 
yet  the  parliament  hath  of  late,  as  it  might  lawfully  do,  set 
a  pain,  that  none  shall  pay  for  the  probate  above  a  certain 
sum  limited  by  the  statute. §  And  also  by  the  statute  that 
is  called  in  Latin  Statutum  de  Caroli  dc  asforiatis  religio- 
soruni,  it  is  enacted,  That  no  house  of  religion  of  beyond 
the  sea,  should  from  thenceforth,  under  colour  of  visitation, 

*Vide  Athon,  36,  and  Gibs.  S27,  on  this  head. 

fSee  statute  21  H.  8,  c.  13,  commonly  called  the  statute  of  non-residence, 
explained  by  25  H.  S,  c.  16;  28  II.  8,  c  13,  and  33  H.  8,  c  2S.  It  likewise 
appears  to  be  the  intention  of  the  Common  law,  that  a  parson  should  be 
resident  upon  his  cure  as  it  has  provided  a  writ  for  his  discharge,  in  case 
he  is  chosen  to  any  civil  office.     2  Inst.  625. 

J  Abolished,  but  vide  statutes  37  H.  8,  c.  9;  13  Eliz.,  c.  8;  21  Jac.  I,  c. 
17;   12  Car.  2,  c.  13,  and  12  Ann.,  stat.  2,  c.  16. 

§  The  author,  I  apprehend,  here  means  the  statute  21  H.  8,  c.  5,  an  act 
upon  which  Dr.  Gibson  has  the  following  observation,  viz.,  that  the  fees 


Dialogue   1 1.— Chap.  ij.  007 

or  other  colour,   set   any  tallage   or  imposition   upon   any 
house  of  religion,  that  is  subject  unto  it  in  England,  upon 
the  pain  to  forfeit  all  that  it  hath  under  the  king's  power. 
And   the    statute   will   further,   That   nevertheless  the   said 
abbots   and  priors   aliens   shall  not   cease  of  their  visitation 
within   this   realm  :   so  that  they  bear  no   money  nor  goods 
from  the  houses  in  England.*     And  methinketh,  that  like 
as    the   parliament    had   then   power   to   prohibit,    that   the 
abbots  and   priors  aliens  should  not  under  colour  of  visita- 
tion or  otherwise,  set  any  tallage  or  imposition   upon  any 
house  of  religion  to  them  subject  in  England,  that  the  par- 
liament  may  now  as  well  prohibit,  that  none  under  colour 
of  visitation,    or   otherwise,    shall    take   of   any   house    of 
religion  or  church,  that  they  shall  visit,  any  sum  of  money, 
or  other  thing,  whatsoever  it  be.     For  methinketh,  that  the 
reason  in  the  one  case,  and  in  the  other,  is  all  one. 

Bod.  It  seemeth  nay.  For  at  the  making  of  that  statute 
the  parliament  intended  principally  to  provide,  that  no 
goods  should  be  conveyed  out  of  the  realm  by  any  religious 
persons,  which  they  did  sometime  under  colour  of  visita- 
tion :  but  in  this  case  it  needeth  not  to  provide  any  remedy 
in  that  behalf,  as  it  is  evident  of  itself.  For  there  be  no 
goods  conveyed  out  of  this  realm  by  reason  of  such  visita- 
tions. 

Stud.  Though  the  principal  intent  of  the  said  parliament 
was  to  provide,  that  no  goods  should  be  conveyed  out  of  the 
realm  by  religious  persons  :f  yet  as  for  a  special  surety  that 
it  should  be  so,  they  thought  it  necessary  to  prohibit,  that 
the  head  houses  of  beyond  the  sea  should  not  by  colour  of 
their  visitation  in  England  do  it.      For  they  thought  that 

given  by  it,  are  become  much  too  small  by  the  great  alteration  of  the  value 
of  money,  and  the  price  of  things,  and,  therefore,  the  rule  now  is  the 
known  and  established  custom  of  every  place,  provided  it  is  reasonable. 
Gibs.  4S7.  The  statute  therefore  is  not  at  all  to  be  depended  upon.  But 
if  the  reader  wishes  to  know  the  fees  and  expences  in  obtaining  the  pro- 
bate of  a  will,  particularly  in  the  prerogative  court,  he  may  find  them  set 
down  in  a  table  by  Mr.  Lovelass  in  his  Law  of  Intestacy  and  Wills,  192. 

*Ante,  32,  208;   2  Inst.  583;  587. 

|2  Inst.  583. 
22 


338  Doctor  and  Student. 


that  was  a  ready  way  to  bring  the  money  into  their  hands, 
that  they  might  after  carry  it  with  them  into  their  country  : 
and  since  the  parliament  had  then  authority  to  prohibit,  that 
the  said  visitors  should  not,  by  colour  of  their  visitations, 
gather  any  tallage  or  imposition  set  upon  them,  that  they 
visited  in  England  :  why  might  not  the  parliament  now 
likewise  prohibit,  that  the  visitors,  at  their  visitations,  should 
gather  no  such  tallage  or  imposition,  as  hath  been  set  in 
time  past  upon  such  houses  and  churches  as  they  do  visit. 
For  certain  it  is,  that  at  the  beginning  of  visitations  no  such 
impositions  nor  pensions  were  paid  :  but  that  they  have  been 
brought  up  since  that  time,  either  at  the  motion  of  them  that 
were  visited,  to  the  intent  that  they  might  thereby  have  the 
more  favour  of  their  visitors,  or  else  by  power  or  compul- 
sion of  the  visitors,  or  for  their  singular  lucre,  or  haply  by 
both  ways.  But  what  way  soever  it  began  :  if  it  should 
hereafter  come  to  the  point,  that  the  visitors  at  their  visita- 
tions, by  reason  of  the  said  impositions  or  pensions,  should 
be  inclined  to  any  singular  affection,  and  so  to  forbear  the 
good  reformations,  that  they  ought  to  look  to  in  the  monas- 
tries  and  churches  that  they  visit,  whereby  evil-doers  should 
take  boldness  to  continue  in  evil,*  and  well-doers  be  dis- 
couraged from  their  virtuous  exercises  in  the  service  of  God, 
I  suppose  verily,  that  they  that  by  good  authority,  and  with 
a  charitable  intent,  would  take  the  said  impositions  and  pen- 
sions from  the  said  visitors,  should  deserve  thereby  right 
great  thank,  and  reward  of  God.  But  I  trust,  there  should 
be  no  such  cause  to  move  them  to  it.  And  now  I  intend 
thus  to  make  an  end  of  the  authority  of  the  parliament  for 
this  time,  and  will  ask  of  thee  but  one  short  question  con- 
cerning the  matter  that  we  treated  of  in  the  first  addition, 
and  so  commit  thee  to  our  Lord. 

Doct.  What  is  that? 

Stud.  It  is  this  :  If  a  curate  since  the  statute  of  mortua- 
ries, thinking  the  said  statute  to  be  against  the  liberty  of  the 
church,  persuadeth  his  parishioners  to  believe,  that  all  they 

*  Ante,  208. 


Dialogue   II. — Chap.    ij.  ^39 

that  keep  the  statute,  stand  in  the  censures  of  the  church, 
and  thereby  induceth  many  of  them,  specially  at  the  point 
of  death,  to  recompence  him  as  much  as  their  mortuaries 
by  estimation  would  have  amounted  to:  whether  hath  he- 
good  right  to  that,  that  is  given  under  that  manner? 

D&ct.  If  it  be  as  thou  sayeth,  that  the  statute  standeth 
with  conscience,  then  hath  he  no  right  thereto  in  conscience. 
For  he  cometh  to  it  bv  an  unjust  means,  and  prandeth  him- 
self  for  the  having  of  it,  upon  an  untruth  i  and  so  the  giver 
is  deceived  in  his  gift,  and  therefore  it  bindeth  not  in  con- 
science, though  it  bind  in  the  law.  And  I  suppose,  that 
though  the  curate  say,  as  he  thinketh  therein,  that  yet  it 
sufficeth  not,  but  that  he  is  bound  to  restitution,  for  igno- 
rance, as  methinketh,  cannot  excuse  the  restitution,  though 
peradvemure  it  may  excuse  him,  that  it  shall  not  be  in  him 
any  deadly  sin. 

Stud.  I  think  it  be  as  thou  sayest,  and  as  it  is  in  this 
point,  it  is  in  divers  other  articles,  upon  the  said  jurisdic- 
tions. Wherefore  methinketh  it  would  be  more  plainly  de- 
clared in  many  things  what  belongeth  to  the  one  jurisdic- 
tion, and  what  to  the  other,  than  it  is  yet,  as  I  have  said 
before,  and  that  hath  caused  me  to  treat  farther  this  matter 
now  at  this  time,  than  I  thought  to  have  done. 

Doct.  I  think  it  be  as  thou  sayest :  but  if  I  might  be  so 
bold,  I  would  desire  to  know  thy  mind  in  one  thing  and  no 
more,  and  that  is  this  :  Of  what  effect  the  statute  is,  that 
was  made  the  2  Hen.  V.,  ch.  1,  whereby  it  is  enacted,  That 
ordinaries  shall  have  power  by  the  king's  commission  to  in- 
quire of  the  hospitals  of  his  foundation  and  of  their  govern- 
ance, and  to  certify  the  king  in  his  Chancery  thereof.* 
And  of  hospitals  of  others  foundation  they  have  power  to 
enquire,  and  do  correction  after  the  law  of  holy  church. 

Stud.  At  a  leisure  I  will  gladly  shew  t  iee  my  mind 
therein,  but  for  this  time  I  pray  thee  hold  me  excused,  for 
I  will  no  more  speak  of  that  matter  as  now.  And  thus 
God  of  peace  and  love  be  alway  with  us.     Amen. 

*  That  is  where  there  are  no  visitors  appointed.  See  statute  14  Eliz.,c.  5, 
and  2  Burn's  Eel.  Law,  289, 


TWO    PIECES 


CONCERNING 


SUITS    IN    CHANCERY 

BY  SUBPCENA. 


I.  A  Replication  of  a  Serjeant  at  the  Laws  of  England,  to  cer- 
tain Points  alledged  by  a  Student  of  the  said  Laws  of  England, 
in  a  Dialogue  in  English  between  a  Doctor  of  Divinity  and  the 
said  Student. 

II.  A  little  Treatise  concerning  Writs  of  Subpcena. 

[These  pieces  are  printed  from  a  manuscript  in  the  Cottonian  library  at  the 
British  Museum.  See  Cott.  MSS.  Cleopatra,  A.  15.  The  title  at  the 
beginning  of  the  manuscript  is,  "  A  Treatise  concerning  Sutes  in  the 
Chauncery  by  Subpcena"  to  which  is  added  the  following  notice  : 

"  Founde  amongste  the  bookes  of  Sir  Edward  Saunders,  late  chiefe 

"justice  of  England,  and  after  chiefe  baron  of  the  exchequer,  and 

"  noted  by  his   hande  writinge   to  be  entitled   on  the  outsvde,    The 

"  Dialogue  bet-Meene  a  Serjaunte  at  the  lazve  and  Christopher  Seinte 

"  Jerman ;    and  on   the    inside,    The  Answer  of  this   Treatise   by 

"  Christopher  Seinte  Jcrman  " 

Both  of  the  pieces  were  clearly  written  in  the  reign  of  Henry  the  8th,  soon 

after  the  first  edition  of  the  Doctor  and  Student,  which  I  take  to  have 

been  first  printed  by  John  Rastell  in  1523.      See  Ames'  Hi9tor.  Account 

of  Printing,  145] 

(341? 


TWO    PIECES 


CONCERNING 


SUITS    IN    CHANCERY 


SUBPCENA. 


PART   I. 


Here  follow  eth  a  replication  of  the  Serjeant  at  the  laws  of 
England,  to  certain  points  alledged  by  a  student  of  the 
said  laws  of  England,  in  a  dialogue,  in  English,  be- 
tween a  doctor  of  divinity  and  the  said  student. 

A  serjeant  of  the  law  of  England  hearing  the  commu- 
nication and  dialogue  between  a  doctor  of  divinity,  and  a 
student  in  the  laws  of  England,  saith  to  the  doctor  in  this 
wise  : 

Mr.  Doctor,  after  my  mind  you  have  right  well  declared 
divers  laws,  that  is  to  say,  the  law  eternal,  the  law  of  rea- 
son, the  law  of  God,  and  the  law  of  man.  And  you,  Mr. 
Student,  have  right  well  shewed,  how  the  law  of  England 
is  grounded  upon  the  law  of  reason,  and  have  shewed  your 
mind  therein  right  well,  against  which  I  intend  not  to  reply. 
But  mine  intent  is,  Mr.  Student,  to  reply  against  your 
opinion  in  one  point  in  a  case  demanded  of  you  by  Mr. 
Doctor,  which  is  this.*     If  a  man  be  bound  in  a  single  ob- 

*  See  Doct-  and  Stud.,  dial,  i,  ch.  12. — Editor. 

(343) 


344  Suits  in  Chancers 

ligation  to  pay  a  certain  sum  of  money  at  a  day  to  the  ob- 
ligee, and  the  obligor  payeth  the  money  at  the  day  and 
taketh  none  acquittance  neither  the  obligation  wherein  he 
is  bound  ;  and  notwithstanding  this  he  that  hath  the  obliga- 
tion bringeth  an  action  of  debt  upon  the  said  obligation 
against  the  obligor  ;  you  have  said,  that  in  this  case  the 
obligor  hath  no  remedy  by  the  common  law  at  [of]  the 
realm,  and  you  have  shewed  the  cause  why  right  well,  as 
it  appeareth  by  your  declaration,  the  which  I  need  not  to 
rehearse.  But  you  say  further  in  this  case,  that  the  de- 
fendant may  be  helped  by  a  subpoena  in  the  king's  chan- 
cery ;  and  to  that  I  intend  to  reply.  Notwithstanding  I 
shall  first  of  all  move  you,  that  in  this  case  after  my  mind 
the  defendant  may  have  remedy  at  the  common  law.  For 
after  this  payment,  if  the  defendant  bring  an  action  of  debt 
against  the  obligee  and  declare  upon  a  prompt,  if  the  ob- 
ligee will  plead  that  he  received  the  said  money  for  the 
contentation  [satisfaction]  of  his  obligation,  this  plea 
pleaded  in  court  of  record  shall  discharge  the  obligor  of 
the  said  obligation  ;  and  if  the  obligee  will  wage  his  law, 
then  the  obligor  is  without  reined}'- ;  and  yet  he  is  at  no 
greater  mischief  than  he  should  be,  if  he  had  lent  him  the 
money  without  writing,  in  which  case,  if  the  defendant 
wage  his  law,  the  plaintiff  hath  no  remedy  at  the  common 
law,  nor  yet  in  .the  chancery  against  his  wager  of  law.  I 
think  that  in  this  case  the  obligee  cannot  wage  his  law  and 
discharge  his  conscience.  For  when  a  man  is  bound  in  a 
single  obligation,  there  is  a  condition  implied  in  the  law, 
that  this  obligation  cannot  be  discharged  but  by  matter  in 
writing,  or  by  matter  of  record.  Then  if  the  obligee  would 
wage  his  law,  thinking  that  it  is  a  satisfaction  of  his  obliga- 
tion, that  is  not  so  ;  for  the  obligation  cannot  be  discharged 
but  by  matter  in  writing  or  by  matter  of  record,  and  so  he 
cannot  wage  his  law  and  discharge  his  conscience  after  my 
mind  :  but  either  he  must  plead  in  court  of  record  that  he 
receiveth  it  in  satisfaction  of  his  obligation,  and  then  the 
obligor  shall  be  discharged  ;  or  else  he  must  repay  the 
money  again,  or  else  he  cannot  discharge   his  conscience. 


By  Subpcena.  34.5 

Now  to  that  )rou  say,  that  this  obligor  may  be  helped  by  a 
subpoena  in  the  king's  chancery.  As  to  that  I  .say,  after  my 
mind,  that  it  standeth  neither  with  the  law  of  reason,  neither 
with  the  law  of  God,  nor  yet  with  the  common  weal  of 
the  realm,  that  this  man  should  be  helped  by  a  subpoena 
in  the  chancery.  First  it  is  not  reasonable,  that  for  a 
particular  man's  cause-,  which  hath  hurt  himself  by  his  own 
negligence  and  by  his  own  folly,  that  the  good  common 
law  o!  the  realm  (which  is  this,  that  the  matter  in  writing 
with  or  without  condition  cannot  be  answered  but  by  matter 
in  writing  or  by  matter  of  record)  should  be  made  void  or 
be  set  at  nought  by  the  suit  of  any  particular  person  made 
in  the  chancery  or  any  other  place.  But  if  reformation  be 
had  in  this  case  in  the  said  chancery  by  a  subpoena,  it  must 
needs  follow,  that  this  good  common  law  must  be  made  as 
void  and  set  at  nought.  For  by  a  subpcena  the  plaintiff  is 
prohibited  to  sue  [at]  the  common  law,  and  is  compelled 
to  make  answer  in  the  chancery,  where  the  obligor  shall  be 
admitted  to  plead  a  payment  of  the  debt  contained  in  a 
single  obligation  without  writing,  which  is  clean  contrary 
to  the  common  law;  so  that  if  that  be  admitted  for  law,  the 
common  law  that  is  contrary  to  this  must  needs  be  no  law. 
For  these  two  laws,  one  being  contrary  to  the  other,  cannot 
stand  together,  but  one  of  them  must  be  as  void.  Where- 
fore it  must  needs  follow,  that  if  this  law  be  maintained  in 
the  chancery  by  a  subpoena,  the  common  law,  which  is 
contrary  to  that,  must  needs  be  as  void  and  of  none  effect. 
I  marvel  much  what  authority  the  chancellor  hath  to  make 
such  a  writ  in  the  king's  name,  and  how  he  dare  presume 
to  make  such  a  writ  to  let  [hinder]  the  king's  subjects  to 
sue  his  laws,  the  which  the  king  himself  cannot  do  right- 
eously ;  lor  he  is  sworn  the  contrary,  and  it  is  said,  hoc  -pos- 
sumus  quod  de  jure  -possumus.  Also  the  king's  judges  of 
this  realm,  that  he  appointed  to  minister  his  laws  of  his 
realm  be  swam  :o  minister  his  laws  of  the  realm  indifferently 
to  the  king's  subjects  ;  and  so  is  not  the  chancellor.  Also 
the  Serjeants  at  the  law  be  sworn  to  see  the  queen's  subjects 
to  be  justified  by  the  laws  of  this  realm,  determinable  by 


346  Suits  in  Chancery 

the  king's  judges,  and  not  by  my  lord  chancellor.  Yet 
this  notwithstanding,  if  the  king's  subjects,  upon  a  surmised 
bill  put  into  the  chancery,  shall  be  prohibited  by  a  subpoena 
to  sue  according  to  the  laws  of  the  realm,  and  be  compelled 
to  make  answer  before  my  lord  chancellor,  then  shall  the 
law  of  the  realm  be  set  as  void  and  taken  as  a  thing  of  none 
effect,  and  the  king's  subjects  shall  be  ordered  by  the 
discretion  of  the  chancellor  and  by  no  law,  contrary  to  all 
good  reason  and  all  good  policy.  And  so  me  seemeth, 
that  such  a  suit  by  a  subpoena  is  not  only  against  the  law 
of  the  realm,  but  also  against  the  law  of  reason.  Also  me 
seemeth,  that  it  is  not  conformable  to  the  law  of  God.  For 
the  law  of  God  is  not  contrary  in  itself,  that  is  to  say,  one 
in  one  place,  and  contrary  in  another  place,  if  it  be  well 
perceived  and  understood,  as  you  can  tell,  Mr.  Doctor ;  but 
this  law  is  one  in  one  court,  and  contrary  in  another  court. 
And  so  me  seemeth,  that  it  is  not  only  against  the  law  of  the 
realm,  and  against  the  law  of  reason,  but  also  against  the 
law  of  God.  Also  me  seemeth,  that  this  suit  by  a  subpoena 
is  against  the  common  weal  of  the  realm.  For  the  com- 
mon weal  of  every  realm  is  to  have  a  good  law,  so  that  the 
subjects  of  the  realm  may  be  justified  by  the  same  ;  and  the 
more  plain  and  open  that  the  law  is,  and  the  more 
knowledge  and  understanding  that  the  subject  hath  of  the 
law,  the  better  it  is  for  the  common  weal  of  the  realm  ;  and 
the  more  uncertain  that  the  law  is  in  any  realm,  the  less  and 
the  worse  is  it  for  the  common  weal  of  the  realm.  But  if  the 
subjects  of  any  realm  shall  be  compelled  to  leave  the  law 
of  the  realm,  and  to  be  ordered  by  the  discretion  of  one  man, 
what  thing  may  be  more  unknown  or  more  uncertain?* 
But  if  this  manner  of  suit  by  a  subpoena  be  maintained,  as  you, 
Mr.  Student,  would  have  it,  in  what  uncertainty  shall  the 
king's  subjects  stand,  when  they  shall  be  put  from  the  law 
ot  the  realm,  and  be  compelled  to  be  ordered  by  the  discre- 
tion and  conscience  of  one  man  !     And,  namely,  forasmuch 


*  Bonum  est  secundum  literas  et  leges,  et  non  secundum  proprium  men- 
tern  judicare.     Aristot.  in  Polit. 


By  Subpcena.  347 

as  conscience  is  a  thing  of  great  uncertainty,  for  some  men 
think  that  if  they  tread  upon  two  straws  that  lie  across,  that 
they  offend  in  conscience  ;  and  some  man  thinketh  that  if 
he  huk  money  and  another  hath  too  much,  that  he  may 
take  part  of  his  with  conscience;  and  so  divers  men,  divers 
conscience  ;  for  every  man  knoweth  not  what  conscience  is 
so  well  as  you,  Mr.  Doctor.  So  me  seemeth,  that  if  the 
king's  subjects  be  constrained  to  be  ordered  by  the  discre- 
tion and  conscience  of  one  man,  they  should  [woud]  be 
put  to  a  great  uncertainty,  which  is  against  the  common 
weal  of  a  realm.  And  so  me  seemeth,  it  is  not  only  against 
the  common  law,  but  also  against  the  law  of  reason,  against 
the  law  of  God,  and  against  the  common  weal  of  this  realm. 

Si nd.   How  is  it  then,  that  the  chancellors  of  England 
have  used  this? 

Serf.  Verily  I  think  for  lack  of  knowledge  of  the  good- 
ness of  the  laws  of  the  realm  ;  for  most  commonly  the 
chancellors  of  England  have  been  spiritual  men,  that  have 
had  but  superficial  knowledge  in  the  laws  of  the  realm  ;  and 
when  such  a  bill  hath  been  made  unto  them,  that  such  a  man 
should  have  great  wrong  to  be  compelled  to  pay  two  times 
for  one  thing,  the  chancellor,  not  knowing  the  goodness  of 
the  common  law,  neither  the  inconvenience  that  might  en- 
sue by  the  said  writ  gf  subpoena,  hath  temerously  directed 
a  subpoena  to  the  plaintiff  in  the  king^s  name,  commanding 
him  to  cease  his  suit  that  he  hath  before  the  king's  justices, 
and  to  make  answer  before  him  in  the  chancery  ;  and  he 
regarding  no  law,  but  trusting  to  his  own  writ  and  wisdom, 
giveth  judgment  as  it  pleaseth  himself,  and  thinketh  that 
his  judgment  being  in  such  authority,  is  far  better  and  more 
reasonable  than  judgments  that  be  given  by  the  king's  jus- 
tices according  to  the  common  law  of  the  realm.  In  my 
conceit  in  this  case  I  may  liken  mv  lord  chancellor,  which 
is  not  learned  in  the  laws  of  the  realm,  to  him  that  stands 
in  the  Vale  of  White-horse,  far  from  the  horse  and 
holdeth  the  horse,  and  the  horse  seemeth  and  appeareth 
to  him  a  goodly  horse,  and  well  proportioned  in  every 
point,    and    that    if    he    come    near    to    the    place    where 


348  Suits  in   Chancery 

the  horse  is,  he  can  perceive  no  horse,  nor  proportion  of 
any  horse.  Even  so  it  fareth  by  m}'  lord  chancellor  thai 
is  not  learned  in  the  laws  of  the  realm  ;  for  when  such  a 
bill  is  put  unto  him,  it  appeareth  to  him  to  be  a  matter  of 
great  conscience  and  requireth  reformation  ;  and  the  mat- 
ter in  the  bill  appeareth  so  to  him,  because  he  is  far  from 
the  understanding-  and  the  knowledge  of  the  law  of  the 
realm,  and  the  goodness  thereof;  but  if  he  draw  near  to  the 
knowledge  and  understanding  of  the  Common  law  of  the 
realm,  so  that  he  may  come  to  the  perfect  knowledge  and 
goodness  of  it,  he  shall  well  perceive  that  the  matter  con- 
tained in  the  bill  put  to  him  in  the  chancery,  is  no  matter 
to  be  reformed  there,  and  namely  in  such  wise  as  is  used. 
Moreover,  Mr.  Student,  I  marvel  much  that  you  say  that 
men  that  have  wrong  may  be  helped  in  many  cases  by  a 
subpoena,  insomuch  as  you  have  in  your  Natura  Brevium 
several  writs  and  [of]  divers  natures  for  the  reformation  of 
every  wrong  that  is  done  and  committed  contrary  to  the 
laws  of  the  realm  ;  and  among  all  your  writs  that  you  have 
in  your  Natura  Brevium,  you  have  none  there  called  a 
subpoena,  neither  yet  the  nature  of  him  [it]  declared  there, 
as  you  have  of  all  the  writs  specified  in  the  said  book. 
Wherefore  me  seemeth  it  standeth  not  with  your  study, 
neither  yet  with  your  learning  of  the  laws  of  the  realm, 
that  any  man  that  is"  wronged  should  have  his  remedy 
by  a  subpoena.  If  a  subpoena  had  been  a  writ  or- 
dained by  the  law  of  the  realm  to  reform  a  wrong, 
as  other  writs  in  the  said  book  be,  he  [it]  should 
have  been  set  in  the  book  of  Natura  Brevium,  and 
the  nature  of  him  [it]  declared  there,  and  for  the  re- 
formation of  that  [what]  wrong  it  layeth,  as  it  is  in 
the  writs  contained  in  the  said  book  ;  and  forasmuch  as  it 
is  not  so,  it  is  a  writ  abused,  in  my  mind,  contrary  to  the 
common  law  of  the  realm,  and  contrary  to  reason  and  all 
good  conscience,  and  yet  is  coloured  by  the  pretence  of 
conscience.  But  it  fareth  by  that,  as  it  doth  by  other  vices, 
quia  vitia  aliquando  mentiuntur  se  esse  virtutcs ;  for  vice 
at  some  time  will  untruly  count  itself  to  be  virtue,  as  pride 


By  Subpoena.  349 

at  some  time  will  shew  himself  [itself]  to  be  meek,  and 
pretend  much  humility  to  have  his  [its]  pretended  purpose. 
And  so  this  writ  of  subpoena  is  colour  of  conscience  to  have 
that  [what]  he  [it]  ought  not  to  have  by  the  law  of  the 
realm,  nor  by  the  law  of  reason,  nor  yet  by  the  law  of  God 
as  1  think,  and  by  all  [all  by]  pretence  of  conscience.  Mr. 
Student,  you  speak  much  of  conscience,  and  you  move  a 
question  whether  conscience  shall  be  ruled  after  the  law,  or 
that  the  law  shall  be  left  for  conscience.  Methinketh  that 
the  law  ought  not  to  be  lett  for  conscience  in  no  case;  for 
the  law  commandeth  all  that  is  good  for  the  commonwealth 
to  be  done,  and  prohibiteth  all  things  that  are  evil  and 
against  the  common  weal.  Wherefore  if  you  observe  and 
keep  the  law,  as  in  doing  all  thing  that  is  for  the  common 
weal,  and  eschew  all  things  that  is  evil,  and  against  the 
common  weal,  you  shall  not  need  to  study  so  much  upon 
conscience,  for  the  law  of  the  realm  is  a  sufficient  rule  to 
order  you  and  your  conscience  what  you  shall  do  in  every 
thing,  and  what  you  shall  not  do.  If  you  therefore  follow 
the  law  truly,  you  cannot  do  amiss,  nor  offend  your  con- 
science ;  tor  it  is  said,  quod  imjilcre  legem  est  esse  fierfecte 
virtuosum,  to  fulfil  the  law  is  to  be  perfectly  virtuous. 

Stud.   That  is  to  be  understood  by  [of]  the  law  of  God. 

Serf.  It  is  also  to  be  understood  by  [of]  the  law  of  man  ; 
for  the  law  of  man  is  made  principally  to  cause  the  people 
[to  keep]  the  law  of  God;  and  some  seemeth,  that  if  you 
follow  the  law  of  the  realm  truly,  you  shall  not  need  to 

leave  the  law  of  conscience. Moreover  you  speak  much 

of  conscience,  and  put  many  cases  concerning  conscience  ; 
and  though  law  will,  yet  whether  it  will  stand  with  con- 
science. For  me  to  reply  and  make  answer  to  every  one 
of  your  cases,  it  were  too  tedious,  and  is  not  mine  intent. 
But  mine  intent  is  to  move  you  to  apply  your  study  prin- 
cipally to  have  the  very  and  true  knowledge  of  the  laws  of 
the  realm,  and  that  had  and  known  to  practice  the  same 
truly  without  any  craft  or  subtle  invention  ;  and  then  you 
shall  not  need  to  speak  so  much  of  conscience.  But  I  per- 
ceive by  your  practice,  that  you  leave  the  common  law  of 


35°  Suits   in   Chancery 

the  realm,  and  you  presume  much  upon  your  own  mind, 
and  think  that  your  conceit  is  far  better  than  the  common 
law  ;  and  thereupon  you  make  a  bill  of  your  conceit,  and 
put  it  into  the  chancery,  saying,  that  it  is  grounded  upon 
conscience  ;  and  so  you  bring  your  conceit  in  argument  in 
the  chancery,  and  leave  the  common  law  as  it.  were  a  thing 
of  no  goodness,  nor  of  no  reputation  ;  in  the  which  practice 
methinketh  you  much  abuse  yourself.  And  though  my 
mind  be  not  to  reply  against  ever}'  of  your  cases,  yet  my 
mind  is  to  reply  against  your  saying,  in  your  answer  made 
to  a  question  demanded  of  you  by  Mr.  Doctor  in  the  latter 
end  of  the  21st  chapter,  in  your  second  dialogue.  And  the 
question  is  this,  to  know  how  uses  began,  and  why  so  much 
land  hath  been  put  in  use?  To  the  which  question  you 
make  answer  in  the  22d  chapter  then  next  following,  say- 
ing, that  uses  were  reserved  upon  a  secondary  conclusion 
of  the  law  of  reason,  as  you  have  declared  in  the  same 
chapter.  I  say,  under  correction  and  reformation  of  my 
lords  and  masters  the  judges  of  the  law  of  this  realm,  that 
they  began  of  an  untrue  and  crafty  invention  to  put  the  king 
and  his  subjects  from  that  which  they  ought  to  have  of 
right  by  the  good,  true,  common  law  of  the  realm  :  as  the 
king's  highness  from  his  escheats,  his  wards,  and  his  primer 
seisins,  and  from  other  things  that  now  come  not  to  ray  mind  ; 
and  his  subjects  from  their  escheats  and  wards,  women  from 
their  dowers,  and  the  husbands  of  such  women  that  be  inherit- 
ors from  their  tenures  by  the  curtesy  of  England,  the  which 
they  ought  to  have  by  the  laws  of  the  realm  ;  and  those  that 
have  good  right  and  title  to  any  land  to  recover  it  by  action 
after  the  course  of  the  common  law  be  put  from  their  ac- 
tions, and  if  they  bring  their  actions  to  cause  such  delays 
that  they  shall  never  have  recovery.  And  though  some 
of  these  inconveniences  be  helped  by  divers  statutes,  as 
you  have  said,  yet  there  rest  many  and  great  inconveniences, 
more  that  I  can  rehearse  at  this  time,  that  be  not  remedied  ; 
and  in  special  [especially]  one,  and  that  is  this.  By  such  uses 
the  good  common  law  of  the  realm,  to  the  which  the  king's 
subjects  be  inherit,  is  subverted,  and  made  as  void,  so  that 


By  Subpcena.  351 


none  of  the  said  subjects  can  be  and  stand  in  any  surety  of 
any  possession.  For  if  he  claim  and  prove  his  title  by  a 
i.lrvd  of  feoffment,  the  other  party  will  say  he  was  but  a 
feoffee  of  trust ;  and  if  he  claim  by  a  line  or  l>v  a  recovery, 
he  will  say  like  wise  that  he  was  of  trust;  so  that  neither 
deed,  nor  line,  nor  yet  recovery,  which  make  men's  titles 
by  the  common  law,  maketh  or  enforceth  any  man's  title 
at  this  day  ;  and  all  because  of  this  false  and  crafty  inven- 
tion of  uses  as  I  think.  To  prove  that  it  began  upon  an 
untruth  and  false  purpose,  it  appeareth  by  that,  that  lie, 
which  maketh  such  a  feoffment,  saith  and  doth  one  thing 
and  thinketh  another  thing  clean  contrary.  For  lie  sayeth 
by  his  word  and  by  his  deed,  and  writing,  and  livery  and 
seisin,  that  the  feoffee  shall  have  the  land  to  him  and  to  his 
heirs  :  and  his  mind  and  intent  is,  that  he  shall  not  have  it, 
but  he  will  have  it  himself.  What  a  falseness  is  this  to 
speak  and  do  one  thing,  and  think  another  thing  clean  con- 
trary  to  the  same  !  Every  man  may  perceive  in  my  mind, 
that  of  this  can  come  no  goodness,  but  craft  and  falsehood. 
And  so  me  seemeth,  that  these  uses  began  by  an  untruth  and 
crafty  invention,  and  are  continued  by  an  untruth  and  for  a 
deceit;  and  yet  do  you,  that  be  students  of  the  common 
law  of  the  realm,  maintain  this  untrue  and  crafty  invention 
in  the  chancery  by  the  'colour  of  conscience,  contrary  to 
the  studv  and  learning  oi  the  common  law.  and  contrary  to 
reason,  and  also  to  the  law  of  God.  What  reason  is  it, 
that  it'  I  give  von  my  land,  with  all  the  circumstances  that 
belong  to  a  gift  ot"  land  by  the  law,  or  levy  a  line  or  suffer 
a  recovery  against  me,  and  yet  I  to  have  the  disposition  of 

land  myself!  So  that  it  appeareth  in  my  mind,  that 
these  uses  began  by  an  untrue  and  crafty  invention,  and  is 
maintained  in  the  chancery  by  the  colour  of  conscienee,  to 
the    subversion    of  the   good   common    law   of  this   realm, 

inst  all  reason,  and  contrary  to   the   law  of  God,  which 
teacheth  nothing  hut  truth,  not  only  to  the  express  wroi 
aim1  hurt  of  the  king's  highness  ami  ol   all   his  subjects,  but 
also  as  much  as  in  them  is  to  bring  the  king's  highness  to 
the  detestable  offence  of  perjury,  as  it   appeareth  by  a  stat- 


352  Suits   in  Chancery 

ute  made  the  20th  year  of  King  Edward  the  3d,*  wherein 
is  contained  as  here  followeth  : 

"  Edward,  by  the  grace  of  God,  etc.,  to  the  sherifTe  of 
Stafford,  etc.,  greeting:  For  that,  that  by  divers  plaintes 
made  to  us  wee  have  knowlege,  that  the  lawe  of  this  lande, 
the  which  we  be  bound  by  our  oathe  to  maintaine,  is  nut 
well  kepte,  and  the  execution  of  it  disturbed  manie  ways 
by  maintenaunce  and  procurement,  as  well  in  courte  as  in 
countrie,  wee,  mooved  greatlie  in  conscience  of  this  mat- 
ter, and  for  that  cause  desyring,  as  well  for  the  pleasure  of 
God  and  ease  and  quietnes  of  our  subjects,  as  lor  the  sav- 
inge  of  our  conscience,  and  for  savinge  and  keepinge  of  our 
oathe  aforesaid,  by  the  assente  of  the  lords  and  other  sage 
wise  men  of  our  counsel,  have  ordeyned  and  comaunded  ex- 
presslie  to  all  our  justices,  that  they  shall  do  egall  [equal] 
lawe  and  execution  of  right  to  all  our  subjects  riche  and  poore 
without  having  regard  to  any  person,  and  not  to  cease  to 
do  righte  for  any  letters  or  comaundements  that  maye 
come  from  us  or  from  any  other,  or  for  an}?-  other  cause 
whatsoever  it  be  ;  and  in  case  that  any  letters  writs  com- 
maundements  come  to  the  justices  or  to  their  deputies,  to 
let  [hinder]  the  law  and  righte  after  the  usage  of  the  realme 
in  disturbance  of  the  lawe  or  of  the  execution  of  the  same 
or  of  right  to  the  parties,  the  saide  justices  and  other  afore- 
saide  shall  go  forthe  and  holde  their  courtes  and  their  pro- 
cess where  their  plees  and  busines  be  dependinge  before 
them,  as  though  no  soche  letters  writs  or  commaundements 
weare  come  unto  them,  and  they  to  certitie  us  and  our  coun- 
sell  of  soche  commaundements,  which  be  contrarie  to  the 
lawes  as  is  abovesaied.  And  to  the  ende  that  our  justices 
shall  do  egall  righte  to  all  men  in  manner  as  is  aforesaid, 
without  shewinge  more  favour  to  one  than  another,  we  have 
caused  our  saide  justices  to  sweare,  that  they  shall  not 
lake,  lrom  henceioorthe  as  longe  as  they  be  in  office,  lee 
or  liverie  of  noman  but  of  ourself,  and  that  they  shall  not  take 
guitte  ne  reward  themselves  ne  by  other  prively  ne  openlie 

*  Lord  Coke  denies  this  to  be  a  statute .     See  3  Inst.  224,  146.— Editor. 


By  Subpcena.  2S3 

of  no  man  that  shall  have  to  do  before  them  by  any  manner 
of  waie,  excepte  it  be  manger  and  boyer,  and  that  of  little 
value  ;  and  that  they  shall  give  no  counsell  to  greate  nor  to 
small  in  case  wher  we  be  par  tie,  or  that  toucheth  us  or  may 
touche  ns  in  an}-  poincte,  upon  payne  to  be  at  our  will  both 
bodie  and  lande  and  to  do  our  pleasure  in  case  that  they  do 
the  contrary.  And  for  this  cause  we  have  encreased  the 
fees  of  our  justices  in  soche  a  manner  as  it  may  reasonablye 
suffice  them." 

So  that  you  may  perceive  by  this  statute,  that  my  lord 
chancellor  nor  none  other  ought  to  send  any  writ  or  writing 
to  any  justices  to  let  [hinder]  them  to  proceed  accord- 
ing to  the  common  law  of  the  realm,  the  which  law  the 
king  is  bound  to  see  maintained,  as  it  appearelh  by  the  said 
statute.  And  all  is  one  mischief  to  send  a  writ,  or  a  com- 
mandment to  the  party,  that  he  shall  not  proceed  to  sue 
[at]  the  common  law,  as  it  was  before  the  making  of  the 
said  statute  to  send  it  to  the  justices  ;  so  that  the  sending  ot 
such  a  writ  or  commandment  can  not  be  justified  no  more 
in  the  one  than  in  the  other.  Notwithstanding  it  is  com- 
monly used  now,  so  that  the  common  law  of  the  realm  is 
taken  tor  nothing,  but  all  the  law  that  now  is  used  is  to  de- 
termine what  is  conscience,  and  which  is  no  conscience, 
and  so  the  common  law  of  the  realm  is  now-a-davs  by  you 
that  be  students  turned  all  into  conscience,  and  so  you  make 
my  lord  chancellor  judge  in  every  matter  and  bring  the 
laws  ot  the  realm  in  such  an  uncertainty,  that  no  man  can 
be  sure  of  any  lands  be  it  inheritance  or  purchase,  but 
ever}-  man's  title  shall  be  by  this  mean  brought  in  question 
into  the  chancer}-  ;  and  therefore  it  shall  be  tried  whether  it 
b.-  conscience  or  no  conscience,  and  the  law  of  the  realm, 
by  which  we  ought  to  be  justified,  nothing  regarded.  And 
so  in  conclusion  after  my  conceit,  if  this  be  not  reformed  by 
the  great  wisdom  and  policy  of  my  lords  and  masters,  the 
judges  of  this  realm,  the  law  of  this  realm  will  be  undone, 
and  all  by  the  mean  of  these  uses  and  the  crafty  and  sub- 
tile inventions  that  you  that  be  students  make  upon  the  said 
uses. 

23 


354  Suits  in  Chancery 


PART  II. 

HEREAFTER    FOLLOWETH    A    LITTLE     TREATISE     CONCERN- 
ING   WRITS    OF    SUBP02NA. 

Whether  a  subpoena  ought  to  lie  in  any  case. 

Chapter  I. 

It  appeareth  in  the  king's  chancery  in  the  time  of  so 
many  noble  princes  and  kings  of  this  realm,  and  in  the 
time  of  so  many  of  their  chancellors,  whereof  some  have 
been  spiritual  men,  and  some  temporal  men,  that  so  many 
have  been  put  to  answer  upon  writs  of  subpoena  in  the 
chancery,  that  it  is  not  to  presume  that  the  chancellors 
have  directed  them  temerously  in  the  king's  name  without 
authority,  but  rather  by  good  authority,  and  by  command- 
ment of  the  king  and  his  council,  and  by  knowledge  of  all 
the  realm.  For  else  it  were  rather  to  presume,  that  they 
should  long  before  this  time  have  utterly  been  annulled  and 
put  away  ;  and  because  the}'-  have  been  suffered  to  continue 
so  long  it  is  to  suppose,  that  in  some  cases  they  may  be 
lawfully  awarded.  Also  it  appeareth  in  divers  years  of 
terms,  that  many  times  when  the  chancellor  hath  been  in 
doubt  in  matters  that  have  depended  before  the  king  in  his 
chancery  upon  subpoenas  between  party  and  party,  that  he 
hath  asked  advice  of  the  justices  some  times,  whether  a 
subpoena  lay  in  the  case  or  not,  and  some  times  admitting 
that  the  subpoena  hath  laid  in  the  case,  a  doubt  hath  arisen 
upon  matter  that  the  defendant  hath  pleaded  in  bar  of  the 
subpoena;  and  many  times  the  justices  in  such  case  deter- 
mined that  the  subpoena  hath  laid,  and  some  times  have 
reasoned  to  the  doubt  that  hath  risen  betwixt  the  parties, 
admitting  the  subpoena  to  lay,  and  so  hath  the  defendant 
done  and  all  his  counsel ;  and  there  be  so  many  cases  re- 


By  Subpcena.  2$<; 


ported  thereof,  that  it  needeth  not  to  recite  them  here. 
Also  by  the  statute  mack;  in  the  17th  year  of  the  king,  R. 
the  2(1,  it  is  enacted,  that  a  man  wrong  full}'  vexed  by  a 
subpoena  shall  recover  his  damages  by  advice  of  the  chan- 
cellor. And  in  a  statute  made  in  the  15th  year  of  the  king, 
II.  the  6th,  it  is  enacted,  that  no  subpoena  shall  be  granted 
till  surety  be  found  to  satisfy  the  party  grieved  of  his  dam- 
ages, if  the  matter  in  the  bill  be  not  proved  true.  By 
which  statutes  it  appeareth,  that  in  case  that  the  defendant 
be  righteously  vexed  in  the  chancer}',  and  be  sued  upon  a 
true  cause,  he  shall  recover  no  damages:  and  thereby  ap- 
peareth that  they  that  were  of  the  parliament  at  the  making 
of  the  said  statutes  assented,  that  in  some  cases  a  man 
might  be  righteously  sued  in  the  chancery,  and  that  they 
intended  to  set  the  diversity  of  the  recovery  of  damages, 
whether  he  was  righteously  sued  and  whether  not.  And 
if  it  be  said  it  is  against  the  statute  of  the  2d  and  20th  of  E. 
3,  and  also  against  divers  other  statutes,  which  will,  that 
the  justices  shall  not  surcease  to  do  right  for  the  grand  seal, 
or  privy  seal,  nor  for  none  other  commandment  of  the  king, 
it  may  be  answered,  the  statutes  are  to  be  understood, 
where  such  commandment  is  directed  to  the  justices,  that 
they  shall  not  therefore  surcease  to  do  justice  ;  but  a  sub- 
poena is  alway  directed  to  the  party  and  not  to  the  justices, 
whether  there  be  any  suit  banging  thereon  in  the  court 
or  not,  and  then  when  the  party  by  reason  of  the  said 
mination  [commandment]  surceaseth  to  call  upon  the  jus- 
tices lor  any  more  process,  they  cease  also  to  give  it  him; 
but  if  the  mination  [commandment]  were  delivered  to  the 
justices,  commanding  them  to  cease,  and  notwithstanding 
the  party  calleth  for  justice,  there  I  think  the  justices  are 
bound  by  reason  of  the  said  statutes  to  proceed  and  to  do 
justice,  the  said  mination  [commandment |  notwithstanding. 
Ami  me  thinketh  that  all  these  things  well  considered,  no 
man  ought  to  marvel,  what  authority  the  chancellor  hath  to 
make  such  a  writ  of  subpoena  in  the  king's  name";  for  the 
old  custom,  not  restrained  by  any  statute,  warranteth  him 
by  reason  of  his  office  so  to  do,  after  certain  grounds,  and 


356  Suits   in   Chancery 

under  certain  manner,  as  I  shall  partly  touch  hereafter  in 
this  little  treatise,  to  give  other  occasion  to  speak  further 
therein  hereafter. 


Here  follozvcth  one  consideration,  why  it  hath  been  thought 
reasonable,  that  a  subpoena  should  lie. 

Chapter  II. 

There  is  a  ground  in  the  common  law,  that  a  declaration 
must  be  certain  ;  especially  that  it  must  shew,  who  bringeth 
the  action,  against  whom  it  is  brought,  and  what  thing  is 
demanded  ;  and  most  commonly  it  must  shew  also  the  day 
and  year  when  the  cause  of  the  action  began.  And  be- 
cause it  happeneth  many  times,  that  some  man  that  hath 
right  to  evidences  that  be  in  another  man's  hand  and  that 
neither  be  under  lock  nor  seal,  cannot  shew  the  very  cer- 
tainty how  many  deeds  there  be,  or  if  it  be  but  one  deed, 
yet  percase  [because]  he  cannot  tell  the  name  of  him  that 
made  the  deed,  nor  of  him  to  whom  it  was  made,  nor  per- 
ad venture  the  certainty  of  the  land  comprised  therein,  nor 
all  the  town's  names  where  it  lieth,  wherefore  he  is  without 
remedy  by  the  course  of  the  common  law  ;  there  it  hath 
been  thought  reasonable  in  times  past,  that  a  subpoena  should 
lie  for  him  that  hath  right,  and  rather  to  suffer  him  to  have 
right  there,  than  to  leave  him  without  remedy  in  all  places. 
And  this  is  one  of  the  most  common  cases  where  a  subpoena 
hath  been  sued  in  times  past.  And  here  it  is  to  be  noted, 
that  it  is  not  against  the  common  law  ;  though  the  party 
have  remedy  in  the  chancery  in  the  said  case,  though  he 
can  have  none  by  the  common  law.  For  the  common  law 
doth  not  prohibit,  but  that  there  shall  be  remedy  in  the  chan- 
cery in  the  said  case,  and  other  like  ;  and  if  it  did,  it  would 
be  hard  to  prove  that  prohibition  were  reasonable.  Where- 
fore the  reasonableness  of  the  law  doth  suffer  it,  rather  than 
it  would' [should]  break  his  rules  and  grounds,  and  to  suf- 
fer the  plaintiff  to  have  an  action,  and  could  not  declare  nor 
chew  whereof  he  brought  his  action. 


By  Subpcena.  357 


Another  consideration  why  it  should  seem  reasonable  that 
a  subpoena  should  be  granted. 

Chapter  III. 

There  is  a  maxim  in  the  law,  that  a  rent,  a  common,  an- 
nuity, and  such  other  things  as  lie  not  in  manual  occupa- 
tion, may  not  have  commencement,  nor  be  granted  to  none 
other,  without  writing.  And  thereupon  it  followeth  that  if 
a  man  for  a  certain  sum  of  money  sell  another  forty  pounds 
of  rent  yearly  to  be  percepled  of  [received  from]  his  lands 
in  D.,  etc.,  and  the  buyer,  thinking  that  the  bargain  is  suf- 
ficient, asketh  none  other,  and  after  he  demandeth  the  rent, 
and  it  is  denied  him,  in  this  case  he  hath  no  remedy  at  the 
common  law  for  lack  of  a  deed  ;  and  therefore  in  as  much 
as  he  that  sold  the  rent  hath  quid  pro  quo,  the  buyer  shall 
be  helped  by  a  subpoena.  But  if  that  gmnt  had  been  made 
by  his  mere  motion  without  any  recompence  ;  then  he  to 
whom  the  rent  was  granted  should  neither  have  had  remedy 
by  the  common  law  nor  by  subpoena.  But  i(  he  that  made 
the  sale  of  the  rent  had  gone  farther,  and  said,  that  he  be- 
fore a  certain  day  would  make  a  sufficient  grant  of  the 
rent,  and  after  refused  to  do  it,  there  an  action  upon  the  case 
should  lie  against  him  at  the  common  law  ;  but  if  he  made 
no  such  promise  at  the  making  the  contract,  then  he,  that 
bought  the  rent,  hath  no  remedy  but  by  subpcena,  as  it  is 
said  before.  And  the  same  law,  which  is  of  a  rent  that  had 
no  being,  but  is  sold  as  a  rent  newly  to  begin  by  the  sale, 
is  of  a  rent  that  had  being  before,  and  is  sold  without  deed 
for  a  certain  recompence,  as  is  before  rehearsed. 


358  Suits  in  Chancery 


Another  consideration  why  it  hath  been  thought  reasonable, 
that  a  subpoena  should  be  granted. 

Chapter  IV. 

In  the  statute  that  is  called  £>ju'a  emptorcs  tcrrarum,  it 
is  enacted,  among  other  tilings,  that  it  shall  be  lawful  for 
every  freeman  to  make  a  feoffment  of  his  lands,  or  of  part 
of  his  lands,  to  whom  he  will,  so  that  the  feoffee  hold  al- 
ways of  the  chief  lord  of  the  fee.  By  reason  of  which 
statute,  if  a  man  since  that  statute,  made  a  feoffment  with- 
out deed,  or  by  deed  poll,  reserving  a  rent,  that  reservation 
is  void  as  for  any  remedy  that  you  shall  have  by  the  com- 
mon law.  And  so  it  is  if  a  man  being  seized  of  lands  for 
term  of  life,  grant  over  his  whole  interest  without  deed,  or 
by  deed  poll,  as  is  aforesaid,  reserving  a  rent,  that  reser- 
vation is  void  in  the  law,  as  for  having  any  remedy  by  the 
common  law  ;  for  there  is  a  maxim  by  the  law,  that  a  res- 
ervation of  rent  shall  not  stand  in  effect,  unless  he  that 
maketh  a  reservation  have  a  reversion  in  him  ;  or  else  that 
the  land  may  be  holden  of  him  by  that  rent  reserved,  as  it 
might  have  been  before  the  said  statute  of  Qiiia  emptorcs 
tcrrarum;  and,  therefore,  since  it  cannot  be  holden  of  him, 
because  of  the  said  statute,  and  seeing  also  that  he  hath  no 
reversion  in  him,  therefore  for  that  reservation  he  shall  have 
no  remedv  in  the  courts  of  the  common  law,  as  in  the  king's 
bench,  the  common  pleas,  and  other  courts  of  lower  au- 
thority than  they  be.  And  the  very  reason  why  it  is  so,  is, 
because  the  m  .xims  and  customs  of  the  law  hath  given  no 
remedy  in  that  case  ;  for  though  a  man  have  right  by  the 
law,  yet  some  time  he  shall  have  no  remedy  by  the  law, 
but  it  is  as  void  as  lor  any  remedy  he  shall  have  at  the 
common  law,  as  is  aforesaid,  but  yet  is  good  by  the  law  of 
reason.  For  reason  will,  that,  forasmuch  the  intent  of  the 
parties  was  that  the  rent  should  be  paid,  and  that  the  feoffee 
take  the  land  to  the  same  intent,  and  hath  the  profits  of  it, 
he  should  pay  the  rent  according  to  the  agreement.  And 
if  any  man  would  say  that  this  reservation  is  void  to  all  in- 


By  Subpiena.  359 

tents,  because  it  is  against  the  law ;  for  if  it  be  against  the 
law,  either  it  is  void,  or  else  the  law  is  void  :  and  therefore 
if  a  statute  were  made  that  all  reservations  of  rents  out  of 
lands  should  be  void,  and  then  a  man,  contrary  to  the  stat- 
ute, would  make  such  a  reservation,  that  reservation  were 
void  in  law  and  conscience,  for  it  were  directly  against  the 
statute  :  and  that  it  should  be  so  in  likewise  in  this  case  :  to 
that  it  may  be  answered,  that  though  it  be  void  in  that  case, 
yet  it  is  not  like  in  this  case.  For  in  this  case  there  is  no 
law  that  prohibiteth  the  reservations  to  be  made,  but  if  they 
be  made  the  law  judgeth  them  by  the  rules  of  the  law  of 
the  realm,  that  there  shall  be  no  remedy  for  them  by  the 
common  law,  as  it  is  said  before  ;  but  taking  the  law  of  the 
realm  to  be  grounded  as  well  upon  the  law  of  reason  and 
the  law  of  God,  as  upon  the  said  customs,  maxims,  and 
statutes,  as  it  is  indeed,  for  else  it  were  a  very  gross  law, 
and  far  insufficient,  and  also  against  reason  in  many  things  ; 
then  is  the  reservation  good  in  the  law  of  the  realm.  So 
generally  taken  upon  all  his  grounds,  howbeit  that  yet  in 
that  case  there  is  no  remedy  for  that  that  [which]  is  re- 
served in  the  king's  courts  of  the  common  law,  as  is  said 
before  ;  but  yet  the  law  is  not  against  it,  but  that  remedy 
ma)"  be  had  therefore  in  the  chancery. 


Another  consideration  zvhv  it  should  seem  reasonable,  that 
a  subpeena  should  be  granted. 

Chapter  V. 

There  is  a  maxim  in  the  laws  of  England,  that  if  a  man 
bring  an  action  of  debt  upon  an  obligation  the  defendant 
shall  not  be  received  to  plead  nihil  debet,  that  he  oweth 
nothing,  but  that  he  shall  be  compelled  to  plead  an  acquit- 
tance or  some  other  thing  of  as  high  nature  in  the  law  as 
the  obligation  is.  And  of  that  it  followeth,  that  if  a  man 
that  is  bound  in  an  obligation,  pay  that  money  and  taketh 
an    acquittance,   and    after  leaseth   [releaseth]   the    acquit- 


Suits   in  Chancery 


tance,  and  thereupon  the  obligor  [obligee]  bringeth  an  ac- 
tion of  debt  upon  the  obligation  against  the  obligor  ;  in  this 
case  the  obligor  has  no  remedy  to  help  himself  at  the  com- 
mon law,  but  shall  be  compelled  by  the  common  law  to 
pa}r  the  money  again  ;  and  then,  as  it  is  said  in  a  dialogue 
called  the  first  Dialogue  in  English  between  a  Doctor  of 
Divinity  and  a  Student,  the  22d  chap.,  he  that  hath  no 
remedy  but  by  a  subpoena,  which  as  is  said  there,  he  shall 
well  have.  And  to  that  saying  an  exception  is  taken  by  a 
certain  person  in  a  treatise  that  he  hath  made  in  the  name 
of  a  Serjeant  at  the  law,  where  he  assigned  divers  reasons 
and  considerations  why  a  subpoena  ought  not  to  lie  in  that 
case. 

And  one  cause  that  he  alledged  is  this.  He  saith,  that 
the  defendant  in  that  case  may  have  sufficient  remedy  by 
the  common  law,  so  that  he  needeth  not  to  take  a  subpoena  ; 
and  his  reason  is  this.  He  saith,  if  the  obligor  atter  the 
payment  will  bring  an  action  of  debt  against  the  obligor 
[obligee],  supposing  that  he  lent  him  the  money,  that  then, 
if  the  obligee  will  plead  that  he  receiveth  the  money  for  the 
contentation  [satisfaction]  of  his  obligation,  this  plea  thus 
pleaded  in  court  of  record  shall  discharge  the  obligor  of  the 
said  obligation. — And  methinketh  that  his  reason  is  not 
made  according  to  the  grounds  and  learning  of  the  law; 
for  in  an  action  of  debt  upon  a  prompt,  it  is  no  plea  to  say, 
that  he  receiveth  the  money  in  contentation  [satisfaction]  of 
his  obligation,  or  of  another  duty,  or  that  there  was  no  such 
a  prompt,  nor  any  other  matter  like  that  amounteth  to  the 
general  issue  ;  but  he  shall  be  compelled  to  take  the  gen- 
eral issue,  or  be  condemned  for  lack  of  answer.  And  if 
lie  plead  that  special  matter  before  rehearsed,  and  conclude 
over  to  the  general  issue,  (that  is  to  say,)  "  and  so  he  oweth 
him  nothing,"  then  is  the  special  matter  waived,  and  all  the 
effect  of  the  plea  resteth  upon  the  general  issue,  which  is 
clear  with  the  obligee  ;  for  he  receiveth  the  money  as  a  con- 
tentation of  his  obligation,  and  not  as  a  loan  ;  and  though 
the  obligor,  after  the  payment,  lease  [released]  his  acquit- 
tance, that  cannot  hurt  the  obligee,  nor  alter  the  nature  o{ 


By  Subpcena.  361 

the  payment  that  was  made  before.  Wherefore  whether  he 
put  him  on  the  country,  or  wage  his  law,  it  is  clear  for  him 
in  law  and  conscience,  and  so  methinketh  that  this  reason 
maketh  title  [little]  for  that  purpose. 

The  second  reason  that  he  maketh  that  a  subpoena  should 
not  lie  in  this  case  is  this.  He  saith,  that  it  is  not  reason- 
able that  for  a  particular  man's  cause,  which  hath  hurt  him- 
self through  his  own  negligence,  and  bv  his  own  follv,  the 
good  common  law  of  the  realm,  that  is  this,  that  mailer  in 
writing  without  condition,  may  not  be  answered  but  by 
matter  in  writing,  or  by  matter  of  record,  should  be  made 
void,  or  be  set  at  nought  by  the  suit  of  an}'  particular  per- 
son in  the  chancery,  or  in  any  other  place.  And  then  he 
saith  further,  that  if  reformation  should  be  had  in  the  chan- 
cery in  this  case,  it  must  needs  follow  that  the  common  law 
must  be  void  and  set  at  nought ;  for  these  two  laws,  being, 
as  he  saith,  one  contrary  to  another,  cannot  stand  together. 
— To  this  it  may  be  answered,  as  methinketh,  that  though 
it  be  prohibited  by  the  common  law,  that  a  man  should  not 
plead  a  payment  against  an  obligation  without  writing,  and 
that  in  the  chancery  he  shall,  that  yet  the  law  in  the  one 
court,  and  in  the  other,  as  to  the  right  of  the  debt,  is  all 
one.  For  the  judges  of  the  common  law  know  as  judges 
by  the  grounds  ot  the  law,  that  the  payment  sufficiently 
dischargeth  the  debt  in  reason  and  conscience,  as  the  chan- 
cery doth  :  but  yet  they  may  not  by  the  maxims  and  customs 
ot  the  law,  admit  the  only  payment  for  a  sufficient  [ilea  be- 
fore them,  not  for  that  they  think  it  not  sufficient  in  reason 
and  conscience  to  discharge  the  debt,  but.that  they  may  not 
break  the  grounds  and  principles  of  old  time  used  in  the 
courts  where  the  action  is  taken.  But  the  common  law  pre- 
tendeth  not,  that  the  maxim  stretcheth  to  all  courts,  nor  to 
the  whole  common  law,  but  to  certain  courts  according  to 
the  custom  before  time  used.  And  therefore,  at  this  day, 
if  an  action  of  debt  be  brought  upon  an  obligation  under 
the  sum  ot  405.  in  the  county,  hundred,  or  court  baron, 
the  defendant  shall  wage  his  law;  and  in  London  the 
defendant   shall    confess  the    deed,    and  pray  that  it   may 


362  Suits  in  Chancery 


be  enquired  of  the  duty.  And  so  it  is  oftentimes 
seen  that  several  courts  have  several  customs,  and 
the  law  suffereth  them  all  :  as  in  the  common  pleas  an 
outlawry  shall  be  sometime  reversed  without  a  writ  of 
error  ;  and  in  the  king's  bench  no  outlawry  shall  be  reversed 
without  a  writ  of  error  ;  and  also  in  the  common  pleas  upon 
the  first  default  in  a  scire  facias,  execution  shall  be 
awarded;  and  in  the  king's  bench  an  alias  shall  be 
awarded.  And  why  may  then  the  said  maxim  hold  in  the 
king's  bench  and  common  pleas,  and  in  some  other  courts 
of  record  as  be  holden  after  the  common  law,  and  yet  not 
be  holden  in  the  chancery?  And  I  would  think  further, 
that  if  it  were  enacted,  that  upon  an  obligation  every  man 
that  would,  might  have  a  subpoena  in  the  chancery,  it  were 
then  no  great  doubt  but  that  the  defendant  in  such  a  sub- 
poena, might  plead  a  payment  against  the  obligation, 
without  offending  the  common  law.  And  yet  if  an  officer 
of  the  chancery  after  that  statute  sued  another  upon  an 
obligation  by  the  privilege  of  the  chancery,  in  that  suit  the 
defendant  should  not  plead  a  payment  without  writing. 
And  if  such  diversity  of  pleading  should  be  suffered  in  one 
court,  it  is  little  marvel  then  though  it  be  suffered  in  several 
courts.  And  then  it  followeth  furthermore  thereupon,  that 
if  the  defendant  in  that  suit  taken  against  him  by  the 
privilege  cf  the  chancery,  as  is  said  before,  hath  paid  the 
money,  and  hath  taken  no  acquittance,  then  he  hath  no 
remedy  but  upon  a  bill  containing  the  matter,  to  desire, 
that  the  plaintiff  may  have  an  injunction  to  surcease  in  that 
suit  there  taken  in  the  chancery,  alter  the  maxims  of  the 
common  law,  and  to  answer  to  his  bill  there  after  the  law 
used  upon  writs  of  subpeena  ;  and  yet  no  contrariety  be  in 
it;  for  the  common  law  claimeth  not,  that  that  maxim 
should  secure  in  any  other  place  but  at  the  common  law, 
and  that  only  in  courts  of  record,  as  is  said  belore.  And  it 
seemeth  a  great  reasonableness  in  the  law,  that  it  wilieth 
the  said  maxim  to  stretch  to  no  other  courts,  but  to  the 
courts  of  the  common  law.  For  if  [it]  did,  it  should  seem 
to  be    far  [very]  unreasonable  ;  for  certain  it  is,  that  if  the 


By  Subpcena.  363 

money  be  paid,  the  debt  in  reason  and  conscience  is  dis- 
charged, though  there  were  no  acquittance  made,  and  then 
hat  maxim  should  [would]  universally  put  the  party  that 
hath  paid  the  money  without  acquittance  from  all  remedy. 
And  therefore  melhinketh  it  should  more  commend  the 
common  law  that  it  suffereth  remedy  to  be  had  in  this  case 
in  the  chancery,  than  it  should  [would]  do  if  it  should 
clearly  prohibit  it ;  and  therefore  they  speak  rather  against 
the  common  law,  that  would  so  have  it,  than  with  it.  And 
if  any  man  would  say,  that  if  such  remedy  may  be  had  in 
this  case  in  the  chancery,  as  I  have  said  before,  that  then 
the  said  maxim  is  void,  and  serveth  to  no  purpose  ;  tor  upon 
every  obligation  such  surmise  may  be  made  though  the 
money  be  not  paid,  and  so  shall  all  plaintiffs  be  delayed  by 
such  untrue  surmises  ;  to  that  it  may  be  answered,  that  if 
he  that  maketh  the  surmise  cannot  prove  his  bill,  he  shall 
yield  damages  to  the  plaintiff,  and  the  plaintiff'  shall  also 
proceed  at  the  common  law.  And  also  it  serveth  to  this 
purpose,  that  it  maketh  them  that  be  bound,  the  rather  to  take 
acquittance,  or  the  obligation  in  lieu  of  acquittance,  whereby 
shall  follow  the  plainer  reckoning,  and  the  less  variance 
among  the  people  ;  and  if  that  maxim  were  not,  many  de- 
fendants would  plead  a  payment,  or  that  they  owe  nothing, 
though  it  be  untrue,  that  will  not  sue  to  have  a  subpcena, 
and  find  surety  to  pay  damages,  if  he  cannot  prove  his  bill 
to  be  true,  knowing  it  to  be  untrue.  And  thus  methinketh, 
that  the  said  maxim  is  good  and  reasonable,  and  also 
profitable  to  the  commonwealth,  though  remedy  may  be 
had  in  the  chancery,  as  is  aforesaid. 


364  Suits   in   Chancery 


Another  consideration  why  it  hath  been  used  that  a  sub- 
■pocna  should  lie. 

Chapter  VI. 

It  hath  been  used,  that  when  feoffees  have  been  seized  to 
the  use  of  a  man  and  his  heirs,  and  that  they  have  been  re- 
quired to  make  estate  according  to  the  use  that  they  were 
infeoffed  to  do  it,  that  then  he  to  whose  use  they  be  so  seized, 
should  have  a  subpeena  to  cause  them  to  make  the  re-feoff- 
ment  unto  him.  But  if  a  feoffment  be  made  to  the  use  of 
a  [person  in]  tail,  and  it  was  agreed  that  the  feoffees  shall 
stand  still  seized  to  the  use  of  the  tail  [entail],  without 
making  any  estate  thereof,  then  in  that  case  there  lieth  no 
subpeena  against  the  feoffees  to  make  estate.  But  if  the 
tenant  in  tail  in  use,  after  the  use  made  in  tail,  had  granted 
to  the  feoffees,  that  the}7  should  stand  still  seized  without 
making  any  estate  to  him  or  to  the  heirs  of  his  body  ;  in 
that'ease  if  the  tenant  in  tail  die,  his  heirs  may  have  a  sub- 
poena against  the  feoffees,  if  they  refuse  to  execute  the  state 
[estate]  truly  ;  for  the  tenant  in  tail  had  no  power  to  bind 
his  heir,  but  that  he  might  ask  of  the  feoffees  execution  of 
the  tail  [entail]  if  he  likes.  And  this  was  wont  to  be  the 
most  common  case  where  a  subpoena  was  sued  till  the  stat- 
ute of  Richard  was  made.  But  yet  since  that  statute, 
though  the  feoffor  may  enter  and  make  a  feoffment,  yet  he 
may  have  a  subpeena  to  cause  the  feoffees  to  make  him  es- 
tate if  he  will.  Also  if  feoffees  of  trust  grant  a  rent  charge, 
the  feoffor  hath  no  remedy  to  discharge  that  rent  by  the 
rules  of  the  common  law,  but  by  a  subpeena.  And  as  an 
use  is  of  lands,  so  there  ma)*  be  o(  goods  and  debts.  And 
there  be  so  many  diversities  where  a  man  shall  be  seized  to 
the  use  of  another,  and  where  not;  and  where  a  subpeena 
lieth  against  them  that  be  seized  to  the  use  of  other  to  make 
them  estate,  and  to  maintain  actions  to  their  use  and  where 
not,  that  it  would  ask  a  special  treatise  to  declare  it ;  and 
therefore  I  omit  the  articles  for  this  time,  and  shall  only 


By  Subpcena.  36$ 


touch  how  use  [uses]  first  began  ;  wherein  I  will  follow  a 
little  treatise  in  English  called  the  Second  Dialogue  be- 
tween a  Doctor  of  Divinity  and  a  Student  in  the  Laws 
of  England,  where  it  is  said,  as  in  the  22d  chapter  thereof 
appeareth,  that  uses  were  reserved  by  a  secondary  conclu- 
sion of  the  law  of  reason  in  such  manner  as  in  the  said 
22d  chapter  appeareth.  Against  which  saying  the  same 
person  of  whom  mention  is  made  before  in  the  said  treatise 
taketh  exception,  and  saith  that  they  began,  as  he  thinketh, 
of  an  untrue  and  false  purpose,  which  he  saith  appeareth 
by  that,  that  he  which  maketh  such  a  feoffment  saith  and 
doth  one  thing,  and  thinketh  another  clean  contrary.  For 
he  saith,  that  he  saith  by  his  word  and  by  his  deed  and 
writing  and  livery  and  seisin,  that  the  feoffee  shall  have  the 
land  to  him  and  to  his  heirs  :  and  yet  his  mind  and  his  in- 
tent is,  that  he  shall  not  have  it,  but  that  he  will  have  it 
himself.  Then  saith  he  further,  what  a  falseness  is  this,  to 
speak  and  do  one  thing  and  to  think  another  clean  contrary 
to  the  same  !  Even-  man  may  perceive,  saith  he,  that 
thereby  may  come  no  goodness  but  craft  and  falsehood  ; 
and  so  he  thinketh,  that  uses  began  by  untrue  and  crafty 
invention,  and  are  continued  by  an  untruth  and  for  a  deceit. 
And  at  this  reason  somewhat  I  marvel.  For  methinketh 
it  is  not  grounded  according  to  truth  ;  for  most  commonly 
when  feoffments  of  trust  be  made,  the  feoffor  maketh  the 
feoffees,  or  at  least  some  of  them,  privy  to  his  intent,  for 
commonly  there  is  no  feoffment  of  trust  made  by  deed, 
though  it  may  be  otherwise,  but  is  seldom  seen  ;  and  then 
the  feoffees  or  one  of  them  must  take  livery  of  seisin,  or 
else  make  a  letter  of  attorney  to  take  it.  What  false- 
hood then  is  it,  when  the  feoffees  or  part  of  them  be  made 
privy  thereto?  And  admit  that  none  of  them  be  made 
privy,  as  some  time  it  may  be,  as  if  a  man  make  a  lease 
for  a  term  of  life  the  remainder  to  certain  persons  to  his 
use,  and  they  know  not  of  it,  nor  never  gave  any  money 
nor  other  recompence  for  it ;  what  falseness  is  there,  though 
the  lessor  after  the  death  of  the  tenant  for  term  of  life  take 
the  profits?     I  see  none.     And  therefore  all  the  doubt  is 


366  Suits  in  Chancery 

when  such  a  feoffment  of  trust  is  made,  whereby  it  appear- 
eth  by  the  words  of  the  deed,  and  as  the  very  truth  is,  that 
the  land  is  given  to  the  feoffees  as  to  the  possessors,  how 
an  use  may  be  reserved  by  the  law  contrary  to  the  word. 
And  yet  doth  the  law  suffer  such  a  reservation  of  an  use 
upon  such  grounds  as  in  the  said  dialogue  is  spoken  ;  and 
therefore  if  any  default  be  it  is  in  the  law,  for  the  party 
sheweth  commonly  what  his  intent  is  to  do  if  the  law  will 
suffer  it ;  and  because  the  law  dotli  suffer  it,  it  taketh  effect 
accordingly  ;  that  is  to  say,  that  the  feoffees  shall  have  the 
possession  and  another  the  use,  which  use  many  times  is 
appointed  to  be  made  by  indentures  of  marriage  or  of  bar- 
gains and  sales,  or  to  declare  their  wills,  and  that  many 
times  by  the  advice  of  learned  counsel  nor  of  no  craft  nor 
falsehood.  But  yet  whether  it  were  good  tD  break  all  uses 
or  to  let  them  stand,  I  will  not  treat  of  at  this  time  ;  for  it  is 
not  the  intent  of  this  writing.  And  if  the}-  should  be 
broken,  the  cause  to  break  them  were  not,  because  they 
began  of  craft  and  falsehood,  as  in  the  same  treatise  is 
said,  but  for  unquietness  and  trouble  that  cometh  by  them, 
and  specially  by  uses  in  tail.  And  as  to  the  mischief  that 
is  alledged  in  the  same  treatise  that  cometh  by  them  by 
loss  of  escheats,  and  by  avoiding  tenancy  by  the  curtesy 
and  in  dower,  and  such  other,  methinketh  it  is  little  to  be 
regarded  ;  for  though  it  be  certain,  that  where  such  titles 
be  once  given  by  the  law  that  it  is  against  right  and  con- 
science to  take  them  from  them  that  they  be  so  fallen  unto, 
yet  to  prevent  their  title  therein,  so  that  no  title  shall  come 
it  is  not  against  conscience,  so  it  be  not  done  of  an  evil  will 
to  him  that  the  title  should  fall  to.  And  therefore  if  a  man 
that  holdeth  by  knight's  service  being  sick  and  like  to  die 
married,  his  son  being  within  age,  because  he  would  have 
the  half  of  his  marriage  himself  to  pay  his  debts,  he  doth 
no  wrong  to  the  lord.  And  so  it  is  in  all  the  cases  that  be 
spoken  of  in  the  said  treatise  where  such  titles  be  put  away 
by  means  of  uses.  And  likewise  if  a  man  that  hath  no 
heir  general  nor  special  selleth  his  land,  or  giveth  it  away, 
to  the  intent  that  it  should  not  escheat,  he  doth  no  wrong  to 


By  Subpcena.  367 


the  lord.  And  these  articles  and  the  articles  that  are 
treated  of  in  the  5th  chapter,  make  me  some  time  to  con- 
jecture, that  the  said  treatise  was  not  made  by  any  serjeant 
at  the  law,  as  it  is  entitled  to  be,  but  of  some  other,  that,  as 
it  seemeth,  had  a  zeal  to  the  law,  though  peradventure 
some  of  the  motions  that  he  maketh  were  rather  to  the  dis- 
commendation  of  the  law  than  to  the  commendation  of  it. 
For  what  praise  were  it  to  the  law  to  prohibit  all  writs  of 
subpoena,  and  yet  no  remedy  to  be  therein  at  the  common 
law?  But  if  remedy  were  provided  at  the  common  law,  it 
were  the  less  force  [consequence],  if  writs  of  subpoena  were 
put  away.  But  in  some  cases  where  subpoenas  lie,  it  were 
very  hard  to  provide  any  remedy  to  be  at  the  common  law, 
as  in  the  case  of  the  evidences  whereof  the  party  knoweth 
not  the  number,  and  whereof  mention  is  made  in  the  2d 
chapter.  And  also  in  divers  other  cases,  whereof  I  intend 
to  touch  briefly  by  certain  cases  and  grounds,  a  man  some 
time  may  have  right  to  a  thing  in  conscience,  and  where 
he  has  no  means  to  come  unto  it  at  the  common  law,  and 
/et  there  lieth  no  subpcena. 


Hereafter  follow  divers  cases  and  grounds,  whereby  it 
appcarcth  that  a  man  may  have  right  in  conscience 
which  he  cannot  conic  unto  by  the  common  law,  and  that 
yet  he  shall  have  110  subpcena. 

Chapter  VII. 

If  lord  and  tenant  be,  and  the  tenant  holdeth  of  the  lord 
by  knight's  service  and  certain  rent ;  the  lord  distraineth 
the  tenant's  beasts,  and  thereupon  maketh  avowry  upon 
his  supposing  that  he  holdeth  of  him  by  fealty  and  certain 
rent,  and  so  thereupon  hath  return  ;  and  after  the  tenant 
dieth,  his  heir  being  within  age:  in  this  case  the  lord  is 
concluded  as  against  the  heir  to  say  that  his  ancestor  held 
of  him  by  knight's  service,  and  that  is,  by  reason  of  the 


368  Suits  in  Chancery 

said  avowry,  whereby  [it]  appeareth  of  record  that  he  him- 
self averred  the  land  was  holden  of  him  in  socage;  and  yet 
the  truth  is,  that  the  tenant  holdeth  of  him  by  knight's 
service.  And  therefore  if  he  bring  a  writ  of  intrusion 
maritagio  11011  satisfacto,  against  the  heir  at  lawful  age, 
and  the  heir  pleadeth  the  said  record  against  him  by  way 
of  conclusion,  the  lord  is  without  remedy  at  the  common 
law,  and  yet  he  shall  have  no  remedy  by  subpoena  in  the 
chancery  ;  for  if  he  should,  he  would  say  directly  against 
that  which  he  affirmed  before  in  the  king's  court  of  record  ; 
and  therefore  though  he  have  right,  the  chancery  will 
suffer  him  to  be  without  remedy,  as  for  any  help  that  he 
shall  have  of  the  law,  rather  than  to  suffer  such  an  open 
contradiction  to  remain  of  record  in  the  king's  courts,  and 
rather  than  it  will  give  him  remedy  against  his  own  confes- 
sion. But  yet  in  this  case  the  heir  is  bound  in  conscience 
to  restore  him  the  value  of  his  marriage,  and  the  profits  of 
the  land  during  the  nonage ;  yet  he  is  not  compellable 
thereunto  by  no  [any]  law.  And  also  against  all  other 
strangers  that  would  take  the  wards  [wardship]  of  the  said 
heir,  the  lord  may  have  good  remedy  by  the  common  law; 
for  none  shall  have  advantage  of  that  estoppel,  but  they 
that  be  party  or  privy  to  the  said  record. 

Also  if  a  man  levy  a  line  with  proclamation  of  land,  that 
he  knoweth  another  man  hath  right  to,  and  he  giveth  him 
no  notice  thereof;  after  this  five  years  pass  without  claim, 
whereby  he  that  had  the  right  is  barred  in  the  law  ;  yet  he 
that  levied  the  fine  is  bound  in  conscience  to  restore  him 
that  had  the  right,  for  he  wittingly  deceived  him,  and  did 
as  he  would  not  have  been  done  unto.  And  yet  though  he 
be  bound  in  conscience  to  restore  him,  [yet]  there  lieth  no 
subpoena  to  compel  him  thereto  ;  for  there  is  no  subpoena 
directly  against  a  statute,  nor  directly  against  the  maxims 
of  the  law  ;  for  if  it  should  lie,  then  the  law  should  be 
judged  to  be  void,  and  that  may  not  be  done  by  no  [any] 
court  but  by  parliament.  And  therefore  if  a  man  procure  a 
collateral  warranty  to  extinct  [extinguish]  the  right  of  an- 
other, and   the  warranty  descended!   upon  him   that  hath 


By    SuBPCENA.  369 


right,  whereby  he  is  barred  of  the  land  in  the  law  ;  though 
he  that  procureth  it  be  bound  in  conscience  to  restore  him 
that  had  right,  yet  he  shall  have  no  subpoena  to  compel 
him  thereto,  for  the  cause  before  remembered  [stated];  for 
the  law  is,  that  he  shall  be  barred,  not  only  in  this  court  or 
that,  but  generally.  And  therefore  if  it  were  enacted,  that 
if  an  alien  came  through  the  realm  as  a  pilgrim  and  died, 
that  all  his  goods  should  be  forfeited,  this  statute  were 
against  reason  and  not  to  be  observed  in  conscience,  and 
yet  there  should  lie  no  subpoena  for  the  executors  of  the 
pilgrim  ;  for  if  there  should,  then  should  the  chancellor 
give  judgment  directly  against  the  statute,  and  that  may 
not  be  in  no  wise  ;  but  if  the  statute  be  -not  good,  it  must  be 
broken  by  parliament  as  it  was  made.  And  so  it  is  of  the 
cases  of  the  fine  with  proclamations,  and  of  the  collateral 
warrant)'  before  remembered. 

Also  if  the  grand  jury  in  attaint  affirm  a  false  verdict 
given  by  the  petty  jury  in  assize,  yet  there  lieth  no  subpoena 
though  the  part)-  hath  right  and  hath  no  remedy  at  the 
common  law.  And  that  for  two  causes. — Whereof  one  is, 
when  the  common  law  hath  gone  as  far  for  remedy  as  the 
law  suffereth,  so  that  there  can  be  then  no  further  trial,  if 
then  the  party  should  have  a  subpoena,  then  the  common  law 
would  have  no  end,  and  thereupon  would  fall  many  incon- 
veniencies.  Wherefore  the  party  shall  rather  be  suffered  to 
be  without  remedy  than  the  inconvenience  should  fall.  But 
in  that  case  he  that  hath  the  land  is  bound  in  conscience  to 
restore,  if  he  will  save  himself  from  deadly  sin,  though  he 
cannot  be  compelled  thereto  by  no  [any]  law. — The  other 
cause  is  this.  There  is  a  statute  made  in  the  4th  year  of  king 
Henry  the  fourth  in  the  22d*  chapter,  that  judgments  givenin 
the  king's  courts  shall  not  be  examined  in  the  king's  chan- 
cer}', parliament,  nor  elsewhere,  but  by  error  or  attaint.  And 
therefore  if  a  subpoena  should  lie,  it  woulcj  be  directly 
against  the  statute. f     And  like  law  is,  if  the  defendant  in 

*  Chup.  23  in  the  printed  statutes. — Editor. 

fit  has  bee'n  long  settled,  that  notwithstanding  the  4th  of  llenrv  4,  our 

H 


37°  Suits   in   Chancery 

an  action  of  debt  upon  a  contract  wage  his  law  untruly, 
whereby  the  plaintiff  is  barred  ;  yet  in  that  case  he  hath  no 
remedy  by  subpoena,  for  the  causes  aforesaid. 

Also  if  a  man  buy  goods  of  another  for  a  certain  sum  of 
money,  and  after  maketh  his  executors  and  dieth,  in  that 
case  there  lieth  no  action  at  the  common  law  against  his 
executors  :  because  their  testator  might  have  waged  their 
law,  and  they  may  not ;  and  therefore  the  law  for  eschew- 
ing of  a  great  inconvenience  and  mischief  that  might  follow 
to  all  executors,  if  such  actions  should  be  maintainable 
against  them  upon  a  bare  surmise,  and  where  their  testator, 
if  the  action  had  been  brought  upon  an  untrue  surmise, 
might  have  waged  his  law  and  they  may  not,  will  not  suffer 
any  action  in  that  case  to  lie  against  them.*  And  then  I 
have  heard  this  taken  for  a  ground,  that  when  the  common 
law  putteth  a  man  from  his  remedy,  though  he  have  right, 
for  eschewing  of  an  inconvenience  that  might  follow  upon 
it,  and  that  then  if  the  remedy  should  be  had  in  the  chan- 
cery, in  the  same  case  the  same  inconvenience  should  fol- 
low, as  should  have  done  at  the  common  law,  that  there  no 
subpoena  shall  lie.  And  that  it  should  be  so  in  this  case  to 
all  executors  is  evident;  and  therefore  no  subpoena  shall  lie 
as  me  seemeth.  And  like  law  is,  as  I  take  it,  upon  an  un- 
true presentment  in  a  leet  for  such  a  thing  as  toucheth  not 
freehold,  that  like  as  there  is  no  remedy  at  the  common  law 

i . . 

courts  of  equity  may  relieve  as  well  after  as  before  judgment  at  law. 
However,  in  Lord  Coke's  time,  and  for  some  time  after,  it  was  a  contro- 
verted point.  Those  who  wish  to  trace  this  controversy  through  its  several 
stages  will  be  able  to  gratify  their  curiosity  by  consulting  the  lollowing 
books,  namely:  Cro.  Jam.  335,  343;  3  Bulstr.  115;  3  Inst.  122;  4  Inst  85; 
Car.  Rep.  144,  163;  March,  S3;  Hardr.  23,  120;  1  Mod.  59;  T.  Raym. 
227;  Jurisd.  of  Chanc-,  vindicated  at  the  end  of  vol.  1  of  Rep.  in  Clianc, 
and  Sir  Rob.  Atkyn's  Enquiry  into  the  Jurisd.  of  Chanc.  39. — Editor. 

*  But  in  latter  times  the  judges  have  allowed  actions  of  assumpsit 
in  which  wager  of  law  is  not  allowed,  for  debts  on  simple  contract,  against 
the  original  debtor,  and  consequently  against  his  executors;  and  since 
this  deviation  from  the  rigor  of  the  law,  as  it  was  formerly  understood, 
it  has  been  determined,  that  though  in  debt  on  simple  contract,  an  execu- 
tor may  abate  the  action,  yet  he  is  at  liberty  to  plead  to  itj  and  will  be 
justified  for  so  doing.     Vaugh.  100,  and  1  Lev.  200. — Editor. 


By   Subpoena.  371 

to  traverse  it,  so  there  shall  be  none  by  subpoena;  for  the 
chief  cause  why  the  common  law  suffereth  no  traverse  in 
this  cast-,  as  I  take  it,  is  to  eschew  the  great  trouble  that" 
might  ensue  upon  such  traverses,  considering  the  great 
multitude  of  such  presentments  in  all  sheriffs'  tournes  and 
leets  within  the  realm  ;  and  as  great  trouble  and  suit  would 
ensue  if  a  subpoena  should  lie  in  this  case  as  would  do  by 
traverses,  and  therefore1  no  subpoena  shall  lie.  And  though 
some  books  assign  another  reason  why  there  lieth  no  tra- 
verse against  such  presentments,  that  is  to  say,  because  the 
law  presumeth  such  presentments,  which  be  made  by  twelve 
men,  in  the  same  place  where  the  offence  is  supposed  to  be, 
to  be  true,  and  will  suffer  the  party  to  have  no  traverse  to 
it,  unless  he  put  in  his  traverse  to  the  presentment  the  same 
day,  and  that  if  he  pass  the  day  no  traverse  shall  lie  for 
him  ;  and  though  this  consideration  may  seem  somewhat  to 
prove  that  no  traverse  shall  lie  against  such  presentments, 
yet  I  think  the  most  principal  cause  thereof  is  for  eschew- 
ing of  great  suits  and  unquietness,  that  might  follow  among 
the  people,  if  such  traverse  were  suffered.  And  the  law 
much  provideth  and  foreseeth  that  no  hurt  shall  grow  unto 
a  multitude,  and  for  that  consideration  it  is,  that  the  law 
will  suffer  no  man  to  enter  upon  a  descent,  and  that  bv  a 
sale  in  open  market  the  property  is  altered  from  him  that 
hath  right ;  and  divers  other  such  laws  be  ordained  to 
eschew  mischiefs  from  a  multitude.    • 

Also  if  a  woman  covert  induce  her  husband  to  sell  her 
land,  and  she  taketh  the  money  and  converteth  it  to  her 
more  profit  than  the  land  was,  and  after  of  her  own  free 
will  maketh  an  affidavit  that  if  her  husband  die,  she  shall 
never  claim  the  land,  but  shall  make  such  further  surety 
[assurance]  to  the  buyer  as  he  shall  devise,  and  thereupon 
she  and  her  husband  maketh  him  a  feoffment;  then  the 
husband  dieth,  and  she  bringeth  a  cut  in  vita  and  recover- 
ed! the  land  ;  in  this  case  the  woman  is  bound  in  conscience 
to  recompence  the  buyer  the  money  [he  paid],  and  all  the 
charges  that  he  hath  sustained  by  that  occasion,  and  yet 
he  shall  have  no  subpoena,  nor  other  remedy  to  compel  her 


3J2  Suits  in   Chancery 

to  it.  For  the  law  presumeth,  that  what  is  clone  by  the 
woman  covert  is  done  by  the  means  of  her  husband, 
and  against  that  presumption  shall  lie  no  suit  against 
her.  And  yet  in  her  own  conscience  she  is  bound  to 
restitution. 

Also  if  there  be  two  joint  tenants  of  goods,  and  the  one 
taketh  the  whole  profit  to  his  own  use,  the  other  hath  no 
remedy  by  subpoena  nor  otherwise  ;  and  yet  he  doth  against 
conscience  to  take  the  whole  profits,  and  as  he  would  not 
be  done  unto  ;  but  for  as  much  as  they  put  confidence  each 
in  [the]  other  to  occupy  jointly*  together,  therefore,  though 
one  of  them- break  that  confidence,  yet  the  other  shall  have 
no  remedy  neither  by  subpoena  nor  otherwise,  against  his 
own  agreement. 


Hereafter  follozucth  a  short  tilling  of  divers  cases  zvherein 
a  subpeena  liclh  not;  bat  the  cause  zvhy  it  lieth  not  is  not 
shczved,  but  is  left  to  other  that  list  to  entreat  further 
of  the  matter. 

Chapter  VIII. 

If  a  man  recover  against  a  tenant  for  term  of  life  or  ten- 
ant  in  the  tail  by  false  verdict,  and  entereth  by  force  of  the 
same  recovery,  and  after  all  the  jurors  die,  so  that  he  that 
lost  the  land  is  clearly  without  remedy  at  the  common  law, 
yet  he  shall  have  no  s.ubpcena. 

Also  if  a  man  without  title  recover  land  by  a  default  in  a 
precipe  quod  reddat,  and  enter  and  taketh  the  profits,  and 
after  he  against  whom  the  recovery  was  had  bringeth  a 
writ  of  right  and  recovereth  the  land  without  damages  as 
he  should  do  bv  the  law  ;  in  this  case,  though  he  that  first 
recovereth  be  bound  in  conscience  to  restore  the  damages 
for  the  time  he  had  the  land,  yet  the  other  shall  have  no 
subpoena  against  him  to  recover  them. 

Also  if  a  man  purchase  an  advowson,  and  after  suffereth 
an  usurpation  before  any  presentation,  and  the  six  months 
pass  ;  so  that  he  hath  no  remedy  by  the  common  law  to 
have  a  writ  of  right,  yet  no  subpoena  lieth  for  him. 


By  Subpcena.  373 


Also  if  the  tenant  for  term  of  life  had  at  the  common  law 
clone  waste,  there  had  lain  no  subpcena  against  him,  noi 
yet  doth. 

Also  if  a  man  make  a  lease  for  a  term  of  life,  and  the 
tenant  for  term  of  life  doth  waste,  and  after  surrendered! 
his  csiale  to  him  in  reversion,  and  he  in  the  reversion  was 
ignorant  that  the  taking  of  the  said  surrender  should  ex- 
tinct [extinguish]  his  action,  yet  no  subpcena  lieth  in  that 
case. 

Also  if  a  man  offend  [upon]  a  penal  statute  by  ignorance 
of  the  law  or  of  the  deed,  .and  thereupon  is  sued  and  con- 
demned in  the  law,  yet  thereupon  lieth  no  subpoena  for 
him. 

Also  if  a  man's  servant  through  negligence  of  his  mas- 
ter, though  it  be  not  by  his  commandment  or  assent,  but 
for  lack  of  correction,  do  offences  and  trespass  to  his  neigh- 
bour, whereby  the  master  is  bound  in  conscience  to  make 
restitution  if  his  servant  be  not  able,  yet  there  lieth  no  sub- 
poena against  the  master  to  compel  him  to  it. 

Also  if  a  man  take  land  for  term  of  life,  and  bindeth 
himself  in  an  obligation  that  he  shall  leave  the  ground  in 
as  good  case  [condition]  as  he  found  it,  and  after  the  woods 
thereof  be  destroyed  bv  sudden  tempest  or  strange  enemies 
without  any  fault  in  him  ;  yet  he  shall  be  condemned  at  the 
common  law  by  reason  of  his  own  bond,  and  he  shall  also 
be  without  remedy  as  for  any  subpoena  he  shall  have  in 
that  behalf. 

Also  when  tenants  for  term  of  life  before  the  statute  that 
giveth  the  quod  ei  deforciat  have  lost  their  lands  by  de- 
fault, whereby  they  were  without  remedy  at  the  common 
law,  yet  there  lay  no  subpoena  for  them  in  the  chancery. 

Also  if  a  man  of  his  mere  motion  and  without  any  rec- 
ompence  make  a  lease  for  a  term  of  life,  the  remainder  to 
the  sheriff  of  such  a  shire  and  to  his  heirs,  without  naming 
his  surname  *  or  his  proper  name  ;  in  this  case  like  as  the 
remainder  is  void  in  law,  so  it  is  in  conscience,  and  no  sub- 

*  That  is,  no  name  of  purchase. 


374  Suits   in   Chancery 

poena  lieth  thereupon  ;  and  yet  a  feoffment  to  the  use  of  the 
sheriff  of  Dale  and  his  heirs  without  naming  his  surname 
or  proper  name,  had  been  good  before  this  parliament. 

Also  if  a  man  can  prove  by  sufficient  writing,  that  in  the 
time  of  king  Henry  the  2d  an  annuity  was  granted  to  his 
ancestors,  but  by  reason  that  they  had  no  seisin  since  that 
time  he  is  without  remedy  at  the  common  law  ;  so  is  he  also 
without  remedy  by  subpoena. 


Hereafter  follozvcth  a  short  titling  of  divers  things,  which 
it  -will  be  right  expedient  for  the  chancellor  of  England 
to  have  in  remembrance ;  lest  haply  if  he  advertise  them 
not,  he  may  charge  himself  in  conscience  some  time  with 
damages,  some  time  with  the  zvholc  thing  that  is  in  de- 
mand before  him,  though  he  cannot  be  compelled  thereto 
because  he  is  a  judge  of  record. 

Chapter  IX. 

First  if  the  chancellor  grant  a  subpoena  and  taketh  no 
surety  that  the  plaintiff  shall  satisfy  the  party  grieved  for 
his  damages,  if  the  matter  in  the  bill  be  not  found  true, 
and  after  the  matter  is  found  against  the  plaintiff  and  he  is 
not  sufficient  to  yield  damages  to  the  defendant,  I  think, 
that  in  that  case  the  chancellor  is  bound  in  conscience  to 
yield  damages  himself;  because  he  took  no  surety  at  the 
granting  of  the  subpoena,  as  he  should  have  done  by  rea- 
son of  the  statute  made  in  the  15th  year  of  king  Henry 
the  6th,  the  4U1  chapter,  whereby  it  is  enacted,  that  no  sub- 
poena shall  be  granted  till   surety  be   found   for  the  truth.* 


:  In  Mr.  Ruffhead's  edition  of  the.  statutes,  it  is  observed,  that  chap.  4, 
of  is"  II.  6,  is  not  upon  the  roll;  and  therefore  its  being  a  statute  seems 
.p!  tionable.  However,  Lord  Coke  concurs  with  the  writer  of  this  trea- 
tise in  considering  it  as  a  statute;  nor  is  it  objected  to  by  the  learned  ob- 
server on  ancienl  statutes.  4  Inst.  84;  Barr.  on  Ant.  Stat.,  4th  ed.  403. 
Whether  it  is  a  statute  or  not,  it  has  long  been  tin-  practice  in  chancery  to 
issue  subpoenas  without  taking  security,  except  in  some  special  cases,  a? 


By  Subpoena.  375 

But  it'  lie  taketh  such  surety,  that  is  sufficient  discharge  for 
him,  though  the  sureties  after  [afterwards]  decay,  and  be 
not  able  to  yield  the  damages. 

Also  if  a  judgment  be  given  in  the  king's  court,  and  after 
that  judgment  the  part)',  surmising  that  the  judgment  was 
given  against  conscience,  praveth  a  subpoena  to  have  it  ex- 
amined in  the  chancery,  and  thereupon  the  chancellor  com- 
pelleth  the  plaintiff  to  find  surety  according  to  the  said  stat- 
ute that  he  shall  yield  damages  to  the  party  grieved  if  he 
cannot  prove  his  bill  true,  and  after  it  is  found  against 
the  plaintiff;  in  this  case  if  the  plaintiff  and  his  sureties, 
for  that  they  be  decayed  surety  taken,  be  not  able  to  yield 
the  damages,  then  the  chancellor  is  charged  in  conscience 
to  pay  them.  For  though  he  have  observed  the  law  in 
taking  the  sureties,  yet  by  the  granting  of  the  subpoena  he 
hath  done  against  the  statute  made  in  the  4th  year  of  Henry 
the  4th,  whereby  it  is  enacted,  that  judgments  given  in  the 
king  his  courts  shall  not  be  examined  in  the  chancery,  par- 
liament, nor  elsewhere,  but  that  the  parties  and  their  heirs 
shall  be  in  peace  till  the  judgment  be  reversed  by  error  or 
attaint  if  any  be  ;  and  therefore  if  the  party  and  his  sure- 
ties be  not  sufficient  to  yield  the  damages,  the  chancellor, 
as  many  men  say,  is  bound  in  conscience  to  do  it. 

Also  if  the  chancellor,  either  from  vehement  conjectures 
or  by  other  information,  giveth  sentence  without  proofs, 
then  he  putteth  himself  to  this  jeopardv,  that  it  afterward 
it  come  to  his  knowledge  in  more  credible  manner  than  the 
first  conjectures  were  of,  that  the  conjecture  were  not  true, 
then  he  is  hound  in  conscience  either  to  redress  the  sentence 
or  to  restore  the  party  to  all  that  he  lost  by  that  sentence. 
And  therefore  it  is  a  most  sure  way,  that  either  he  give 
judgment  by  proofs,  or  else  upon  his  own  knowledge  :  as 
I  suppose  well  he  may  if  he  know  soothfastly  [of  a  cer- 
tainty] the  truth  of  his  own  knowledge.      And  here  I  would 

whore  the  plaintiff  resides,  or  is  going,  abroad,  ami  the  defendant  on  that 
ground  applies  to  the  oourt  to  have  seeurity  given.  Prac.  Reg.  in  Cha. 
340. — Editor. 


376  Suits  in   Chancery 

put  this  diversity  in  this  matter,  that  if  the  chancellor  give 
judgment  according  to  the  proofs,  though   they  be  untrue, 
that  it  sufficeth   for  his  discharge  unless  he  know  the  con- 
trary of  his  own  knowledge.      For   he  hath   followed    the 
order  of  the  trial   appointed  bv  the  law  in   that  case,  and 
that  sufficeth  to  him.      As  it  doth  for  the  ordinary  if  he  pre- 
sent the  clerk  of  him  that  is  found  true   patron  by  the  jure 
^patroiiatus,  though  he  be  not  so  indeed  ;  for  he  hath  done  that 
that  the  law  would  he  should  do  for  knowledge  of  the  truth 
therein  :   but  if  he  will  not  grant  any  writ  to  inquire  de  jure 
fiatronatus,  but  will  present  by  other  examinations  and  pre- 
sumptions the  clerk  of  him  that  he  thinketh  to  be  right  pa- 
tron, he  bindeth  himself  to  this  jeopardy,  that  if  another  be 
right  patron   indeed,    a  quare   impcdit  lieth   against  him. 
And  so  methinkelh,  that  the  chancellor  likewise  bindeth 
himself  to  yield  damages  if  he  give  judgment  upon  conject- 
ures, though  he  thinketh  never  so  clearly  in  his  conscience 
that  they  be  true,  unless  they  be  true  indeed.     And  yet  some 
will  say,  that   though  they  be  true  indeed,  that  yet  he  of- 
fendelh,  because  he  hath  set  a  certainty  of  his  judgment  in 
that  thing  that  is  uncertain,  and  that  is  not  appointed  in  the 
law  for  him  to  follow  for  his  warranty  ;   and  they  think  he 
may  not   do   so  with  conscience;   for  it  is  said,   qui  amat 
■pcricidum  -pcribit  in   tllo,   he  that  will  wilfully  put  him- 
self   in    jeopardy   to    offend    shall    perish    thereby.       And 
though     that    text     may   also    be     reasonably    expounded, 
to   other   jeopardies,   yet    it    seemeth,    that    it  may   conve- 
niently be  applied  to  this  purpose,  that  is  to  say,  that  he 
pulleth   himself  in  jeopardy  to  offend,   that   [who]    givelh 
a  judgment  and  is  not  certain   of  himself  nor  by  the  order 
of  the  law  that  his  judgment  is  true.      And  so  it  is,   if  a 
man  taketh    another  and  sweareth  precisely  that    such  a 
thing   is  true,    which    he   knoweth   not   but  by  conjecture. 
And  I  believe  their  saying  rather  to  be  true  lor  this  reason. 
For  I   have   taken   it  always  for  a  learning,  that  if  a    man 
have  no  sufficient  proof  of  his  title  by  witness  in  writing  or 
otherwise,  that  he  is  without  remedy  in  the  chancery  ;   and 
if  the   chancellor  might  give  judgment  upon   conjectures, 


By  Subpcena.  377 


that  were  not  so,  he  might  then  judge  as  his  conscience 
judgeth  him  to  do  alter,  [dictates  to  him,  according]  as  he 

thought  to  he  the  most  reasonable  conjecture.  And  where 
some  men  have  said,  that  the  chancellor  upon  a  subpcena 
is  not  bound  to  judge  secundum  allegata  et  probata,  but  ac- 
cording to  the  truth  ;  as  I  take  it,  that  i-;  to  be  understood 
in  this  manner,  [viz.]  that,  though  proofs  be  brought  into 
the  chancery  which  prove  sufficiently  for  one  of  the  parties, 
that  if  the  other  party  can  sufficiently  instruct  the  chancellor 
that  he  hath  better  matter  than  he  pleaded  first,  and  that  is 
newly  come  to  his  knowledge,  and  prayeth  that  he  may  be 
admitted  thereto,  the  chancellor  may  admit  him  to  it  as  well 
alter  publishing  of  witnesses  as  before,  if  he  will  ;  but  that 
is  not  to  be  used  without  a  very  special  cause,  for  it  is 
against  the  common  form  of  the  chancery.  And  also  he 
may  suffer  the  parties  to  change  their  demurrer,  and  that 
is  a  great  favour  ;  for  they  shall  not  be  admitted  thereto  in 
none  other  court  of  the  king.  Also  in  the  chancer}'  a 
double  plea,  nor  a  departure  from  his  plea,  nor  two  pleas 
where  the  one  goeth  to  the  whole,  shall,  not  condemn  him 
that  pleadeth  it ;  but  the  very  truth  in  conscience  is  to  be 
searched,  and  that  truth  cannot  be  searched  by  conjectures 
as  me  seemeth. 

And  some  men  say,  that  if  the  chancellor  grant  a  sub- 
poena upon  a  bill  that  appeareth  evidently  to  belong  to  the 
common  law  and  not  to  the  chancery,  and  though  he  there 
taketh  surety  according  to  the  said  statute  of  Hen.  6,  yet  in 
that  case  he  is  bound  nevertheless  to  yield  damages  to  the 
defendant,  though  the  bill  be  proved  true  ;  because  he  hath 
done  against  the  law.  And  some  men  will  say,  that  in  that 
case  an  action  lieth  upon  the  statute  of  Magna  Charta 
against  the  plaintiff.  Howbeit  I  will  not  determinately 
speak  therein,  but  will  likewise  remit  it  to  others  that  will 
further  treat  thereof  for  the  plainer  declaration  of  that 
matter. 

And  I  would  therein  take  this  diversity.  If  the  matter 
in  the  bill  were  apparent  and  without  doubt  or  argument 
that  it  belonged  to  the   common    law,   that  then  it  should 


378  Suits   in   Chancery 

seem  that  the  chancellor  should  be  bound  in  conscience  to 
yield  damages  if  the  party  be  not  sufficient,  as  it  is  said  be- 
fore. But  if  the  matter  in  the  bill  be  doubtful,  whether  a 
subpoena  lie  thereupon  or  no,  and  he  taking  the  law  to  be 
that  a  subpoena  should  lie  in  the  case  grauteth  forth  a  writ? 
it  were  hard  to  say,  that  he  should  be  bound  in  conscience 
to  yield  damages,  though  it  appeared  afterward  by  reason- 
ing of  the  judges  or  otherwise  that  no  subpoena  lay  in  the 
case.  For  they  that  be  learned  in  the  law  may  after  most 
common  opinion  be  some  time  excused,  though  they  give 
counsel  otherwise  than  the  law  is,  so  that  they  gave  counsel 
as  they  thought  the  law  to  be,  and  that  they  had  taken  suf- 
ficient time  and  study  to  learn  the  law,  and  that  specially 
in  such  cases  as  be  very  hard  to  come  to  the  knowledge  of 
the  law  in.  And  so  it  seemeth  to  be  of  the  chancellor  in 
granting  of  writs  of  subpoena. 

Also  if  the  chancellor  delay  the  parties,  either  in  the 
pleading,  or  in  the  bringing  in  of  witness  [evidence],  or 
after  the  publishing  of  witness  [evidence],  more  than  he 
would  be  contented  to  be  delayed  himself  if  he  were  in  like 
case,  either  for  favour  to  any  of  the  parties,  or  to  keep  many 
sureties  before  him,  or  for  such  other  cause  like  [similar 
cause],  he  is  bound  in  conscience  to  restore  the  party  so  de- 
layed, or  haply  [perhaps]  both  parties,  of  all  their  costs 
and  damages  that  they  have  sustained  by  reason  of  that 
delay  ;  for  he  hath  done  as  he  would  not  be  done  unto. 
But  if  the  matter  be  very  doubtful,  and  he  therefore  re- 
spiteth  it,  to  be  advised,  or  to  have  counsel  of  the  justices, 
or  for  that  he  may  not  attend  it  for  other  more  necessary 
causes  as  he  thinketh,  there  he  may  be  excused  in  con- 
science. And  so  the  intent  and  cause  of  the  delay  is  the 
very  charge  or  discharge  of  conscience  in  this  behalf  as  me 
seemeth. 


By  Subpiena.  379 


Hereafter  follozvcth  a  titling  of  divers  objections,  which 
the  maker  of  the  aforesaid  dialogue  laycth  against  writs 
of  subpeena,  with  answers  to  them. 

Chapter  X. 

First  he  saith,  that  he  murvelleth  how  the  chancellor 
may  make  such  a  writ  to  let  i  hinder]  the  king's  subjects  to 
sue  his  laws,  the  which  the  king  himself  cannot  do  right- 
eously, for  he  is  sworn  to  the  contrary. — To  that  it  may  be 
answered,  that  the  king's  oath  in  that  point  is  this,  that  he 
shall  grant  to  hold  the  laws  and  customs  of  the  realm  ;  and 
then  if  the  laws  and  customs  of  the  realm  shall  be  under- 
stood as  well  the  laws  and  customs  used  in  the  chancery  as 
at  the  common  law,  as  I  suppose  they  be,  and  as  I  have 
somewhat  touched  before  in  the  5th  chapter  of  this  treatise 
that  they  be,  then  it  is  not  against  the  king's  oath,  though 
the  chancellor  by  means  of  a  subpoena  minister  justice  unto 
the  subjects. 

Another  objection  is  this.  He  saith  that  the  king's 
justices  and  his  Serjeants  be  sworn  to  minister  justice  unto 
the  king's  subjects,  and  that  so  is  not  the  chancellor ; 
whereby  it  should  seem  that  his  meaning  is,  that  the  chan- 
cellor should  therefore  be  at  liberty  to  break  justice. — To 
that  it  may  be  answered,  that  though  he  be  not  bound  to  do 
justice  by  his  oath,  yet  he  is  bound  thereto  in  conscience, 
and  that  more  deeply  than  the  judges  be,  for  he  must  form 
his  judgments  according  to  the  law  of  God  or  to  the  law  of 
reason,  or  to  the  laws  of  the  realm  made  to  determine  the 
right  of  lands  and  goods,  and  that  be  not  contrary  to  the 
said  laws.  And  therefore  if  he  err  in  his  judgment,  there 
is  greater  default  in  him  than  is  in  the  judges  if  they  err  : 
lor  the  law  of  God  and  the  law  of  reason,  and  also  the  law 
of  the  realm,  grounded  upon  those  laws  are  much  more 
evident  and.  apparent  to  give  judgment  upon,  than  are  the 
general  grounds,  maxims,  and  some  customs  ot  the  realm  ; 
for  the  chancellor  shall  not  need  to  meddle  with  the  estopple 


380  Suits   in   Chancery 

of  the  law,  nor  with  the  general  rules  of  the  law,  nor  yet 
with  the  form  oi  writs  nor  form  of  pleading,  wherein  the 
greatest  difficulties  of  the  law  depend.  And  peradvenlure 
this  may  be  the  case  why  a  writ  of  error  doth  not  lie  upon 
a  judgment  given  by  the  chancellor  upon  a  subpoena  ;  for 
the  law  presumeth  that  no  man  contrary  to  so  evident  laws 
will  err  in  his  judgment.  But  i(  he  do  err  indeed,  he  is  as 
highly  bound  to  reform  it  or  to  make  restitution  as  the 
judges  of  the  common  law  be,  and  more. 

Another  objection  that  he  maketh  is  this.  In  what  un- 
certainty (saith  he)  shall  the  king's  subjects  stand,  when 
they  shall  be  put  from  the  law  of  the  realm,  and  be  com- 
pelled to  be  ordered  by  the  discretion  and  conscience  of  one 
man  :  and  namely  for  as  much  as  conscience  is  a  thing  of 
great  uncertainly,  for  some  men  (he  saith)  think,  that  if  they 
tread  upon  two  straws  that  lie  across  that  they  offend  in 
conscience,  and  that  some  man  thinketh  that  if  he  lack 
money,  and  another  hath  too  much,  that  he  may  take  part 
of  his  with  conscience,  and  so  divers  men  divers  conscience  ; 
for  every  man  knoweth  not  what  conscience  is  as  well 
(saith  he)  as  Mr.  Doctor. — And  to  that  he  may  be  answered, 
that  the  said  two  consciences  by  him  before  remembered, 
whereof  the  one  is  a  scrupulous  conscience  and  the  other 
an  erroneous  conscience,  are  not  such  a  conscience  as  the 
chancellor  or  any  other  are  bound  to  follow.  But  they  are 
errors  in  conscience  ;  and  errors  in  conscience  come  seven 
manner  of  ways,  as  is  expressed  in  the  said  first  dialogue, 
the  15th  chapter,  which  he  that  will  keep  himself  in  a 
clean  conscience  must  clearly  abject  and  cast  away. 
But  the  conscience,  which  the  chancellor  is  bound  to  fol- 
low, is  that  conscience,  which  is  grounded  upon  the  law 
of  God  and  the  law  of  reason,  and  the  law  of  the  realm  not 
contrary  to  the  said  law  of  God  and  law  of  reason.  And 
therefore  to  be  ruled  by  such  a  conscience  seemeth  neither 
to  be  against  the  law  of  God  nor  the  law  of  reason,  nor  the 
commonwealth  of  the  realm,  as  in  that  said  treatise  it  is 
supposed  to  be.  And  that  the  chancellor  is  bound  to  order 
his  conscience  after  the  law  o(  God  and   the  law  of  reason 


Bv    SuBPCENA.  381 

is  evident  of  itself,  and  needeth  no  further  proof.  And 
that  he  is  also  bound  sometime  to  order  his  conscience  by 
the  law  of  the  realm  and  after  none  other  law  of  man,  it 
may  appear  thus.  If  a  man,  seized  of  lands  in  fee,  maketh 
his  will  that  another  shall  have  it  to  him  and  his  heirs,  and 
after  dieth  seized  ;  if  it  come  afterwards  in  question  in  the 
chancer}',  whether  this  will  be  good,  the  chancellor  is 
bound  in  conscience  to  judge  it  to  be  void  in  conscience, 
because  it  is  void  by  the  law.*  And  likewise  if  father  and 
son  be,  the  son  purchaseth  lands  in  fee,  and  dieth  without 
any  heirs  of  his  body,  the  uncle  by  the  law  shall  have  the 
land  as  heir  unto  him  and  not  his  father  :  but  if  the  father 
have  afterward  another  son,  then  that  son  shall  have  the 
land  from  his  uncle  as  next  heir  to  his  brother  ;  and  if  this 
matter  come  alter  in  variance  in  the  chancery  for  evidence 
or  otherwise,  the  chancellor  is  bound  to  order  his  conscience 
and  to  give  his  judgment  accordingly  as  the  law  is.  And 
therefore  though  no  writ  of  error  lie  upon  a  judgment  given 
by  the  chancellor  upon  a  subpoena,  yet  it  will  appear  upon 
the  matter  whether  the  judgment  stand  with  conscience  or 
not.  For  it  is  not  to  think,  that  whatsoever  the  chancellor 
at  the  time  of  his  judgment  thinketh  to  stand  with  con- 
science sufficiently  dischargeth  him  in  conscience  ;  for  if 
there  be  any  error  in  his  conscience  and  in  his  judgment 
by  any  of  the  causes  contained  in  the  said  15th  chapter  of 
the  said  first  dialogue,  or  otherwise,  he  is  bound  to  reform 
it.  And  that  he  is  bound  to  more  than  any  other  judge  ; 
for  other  judges  may  some  time  give  judgment  against 
their  own   knowledge,  and   also   against  the  truth,  and  yet 

*  It  should  be  remembered  here,  that  our  author  wrote  before  making  of 
the  statutes  of  32  and 34  and  35  of  lieu.  S.  for  which  the  power  of  devising 
land  commenced.  Indeed  before  those  statutes  there  was  an  indirect  mode 
of  devising  land  through  (he  medium  of  trusts-  But  it  seems  from  our 
author's  doctrine,  that  this  evasion  was  only  endured  where  the  testator 
previously  to  his  will  had  actually  parted  with  the  legal  estate  to  a  trustee; 
and  consequently  that  the  refinement  of  considering  the  heir  as  a  trustee 
was  not  then  established  in  our  courts  of  equity.  See  the  preamble  to  the 
statute  of  u  es  ot  27  lien.  8,  and  the  clause  in  it  in  favour  of  prior  wills, 
and  also  l)y.  143. — Editor. 


382  Suits  in  Chancery 

no  default  to  be  in  them,  as  it  is  in  all  trials,  except  death 
of  man,  where  they  may  not  give  judgment  against  their 
own  knowledge  ;  but  the  chancellor  shall  never  be  bound 
to  give  judgment  against  his  own  knowledge,  nor  against 
that  that  appeareth  evidently  to  stand  against  conscience, 
for  no  manner  of  trial.  And  though  some  men  may  be 
deceived  through  a  scrupulous  conscience,  or  an  erroneous 
conscience,  or  in  such  other  manner,  yet  it  is  not  to  pre- 
sume, that  the  chancellor,  who  is  always  appointed  to  his 
office  by  the  king  as  a  man  of  singular  wisdom  and  good 
conscience,  will  be  deceived  by  such  errors  in  conscience, 
having  such  straight  rules  to  the  order  of  his  conscience  as 
he  shall  have.  And  so  methinketh  it  is  not  against  the 
common  weal  of  the  realm,  though  such  cases  as  writs  of 
subpoena  lie  upon,  be  committed  only  to  the  judgment  of 
the  chancellor. 

Also  another  objection  that  he  layeth  to  the  Student  is 
this.  He  saith,  that  the  law  of  the  realm  is  a  sufficient 
rule  to  order  you  and  your  conscience  what  you  shall  do 
in  every  thing,  and  what  you  shall  not  do.  If  you  there- 
fore follow  the  law  truly,  you  cannot  do  amiss,  nor  offend 
your  conscience,  nor  you  shall  not  need  to  leave  the  law  for 
conscience  :  by  which  saying  it  seemeth,  that  it  is  in  vain 
in  any  case  to  sue  by  subpoena,  as  though  a  man  should 
never  have  help  by  conscience  where  he  could  have  none 
by  law. — And  to  this  saying  it  may  be  answered  thus,  that 
if  he  take  the  law  of  the  realm  as  a  law  grounded  upon  the 
law  of  reason  and  the  law  of  God,  with  the  customs  and 
maxims  of  the  law  ordained  by  the  realm,  I  think  well  that 
(as  he  saith)  the  law  of  the  realm  will  be  a  sufficient  rule 
to  order  a  man  and  his  conscience  what  he  shall  do.  But 
yet  it  will  not  always  give  him  remedy,  when  he  hath  right, 
as  appeareth  in  the  2d  chapter  and  the  3d,  and  also  the  7th 
chapter  of  this  present  book.  And  after  this  law  it  is  that 
the  judges  reason  when  they  sit  with  the  chancellor  in  the 
chancery,  and  also  when  they  sit  upon  arbitrements.  And 
if  he  that  made  the  same  treatise  take  the  law  of  the  realm 
as  a  law  grounded  upon  the  maxims  and  customs  and  the 


By  Subpoena.  383 

rules  of  the  law,  and  according  to  the  process,  as  is  used 
in  the  king's  bench,  common  pleas,  and  such  other  courts 
of  record  as  be  commonly  taken  for  courts  of  the  common 
law,  I  suppose  that  he  will  not  say,  that  the  law  of  the 
realm  so  taken  is  sufficient  to  order  him  and  his  conscience 
in  all  things  ;  and  if  he  do,  methinketh  he  erreth  greatly 
therein  ;  and  that  may  appear  in  divers  cases,  whereof  some 
be  put  in  the  same  7th  chapter,  and  some  shall  hereafter 
appear.  If  an  infant  of  the  age  of  20  years  sell  his  land 
for  £100,  I  suppose  also  he  buyeth  land  with  the  same 
money  of  greater  value  than  his  own  land  was  :  in  this  case 
by  the  law  he  may  enter  again  into  his  own  land  ;  yet  the 
other  shall  have  no  remedy  against  him  by  the  law  of  the 
realm  for  the  said  £100.  I  think  that  no  man  will  say  that 
[the]  infant  may  with  conscience  both  retain  the  land  and 
the  £100  also  ;  and,  yet  the  law  will  suffer  him  to  do  it  if 
he  will.  Also  in  all  cases  where  a  man  hath  right  and  is 
estopped  by  some  record  or  otherwise,  so  that  he  therefore 
can  have  no  remedy  by  the  law  to  recover  his  right,  vet  may 
not  he  that  doth  him  wrong,  retain  that  [which]  he  keepeth 
wrongfully  from  him,  with  conscience:  and  vet  if  he  will 
the  law  will  not  prohibit  him  the  contrary,  and  therefore  he 
must  there  of  necessity  be  ruled  after  conscience  if  he  will 
be  saved.  Also  if  a  man  owe  another  an  £100,  and  the 
debtor  by  sudden  loss  on  the  sea,  or  by  fire,  or  such  other 
casualties  loseth  all  that  he  hath,  in  this  case  the  debtee  by 
the  law  may  recover  his  debt,  and  thereupon  take  a  capias 
ad  satisfaciendum  and  lay  the  debtor  in  prison,  there  to  re- 
main till  he  hath  paid  the  debt,  without  any  help  that  he 
shall  have  in  the  law.  And  yet  I  suppose  that  he  that  hath 
made  the  said  treatise  will  not  say,  that  if  the  debtee  know 
perfectly  that  the  debtor  lost  his  goods  by  such  casualty, 
and  not  through  his  own  fault,  and  that  he  hath  nothing  left 
to  pay  him  with,  that  he  may  in  conscience  keep  him  still 
in  prison  ;  for  if  he  do,  I  suppose  verily,  he  saith  as  he 
would  not  be  done  to.  And  therefore  it  is  £ood  always  to 
use  the  law,  with  a  dread  that  he  offend  not  his  conscience, 
in  executing  all  that  he  may  do  by  the  general  rules  thereof, 


384  Suits  in  Chancery  by  Subptena. 

as  he  may  undoubtedly  do,  and  yet  the  law  in  itself  to  be 
good,  as  it  will  appear  in  the  16th  chapter  of  the  said  first 
dialogue. 

Also  another  objection  is  this.  He  saith  to  the  Student, 
that  he  marvelleth  much,  that  the  Student  will  say  that  men 
that  have  wrong,  may  be  helped  by  a  subpoena  in  many 
cases,  in  as  much  as  he  saith  there  are  in  Natura  Brevium 
several  writs  and  of  divers  natures  for  the  reformation  of 
every  wrong,  that  is  done  or  committed  contrary  to  the  laws 
of  the  realm  ;  and  in  all  the  Natura  Brevium,  as  he  saith, 
there  is  no  writ  called  a  subpoena,  nor  yet  that  the  nature 
thereof  is  not  there  declared,  as  there  is  of  all  the  writs 
specified  in  the  said  book  :  and  so  it  seemeth  that  his  mean- 
ing is,  that  because  a  subpoena  is  not  in  JYatura  Brevium, 
therefore  there  should  be  no  such  writ.  And  this  should 
seem  to  be  but  a  slender  objection.  For  the  said  book  is 
not  taken  of  such  authority,  that  all  things  that  is  in  it  is 
clear  law,  nor  that  it  is  not  so  perfect  that  all  writs  that 
pertain  to  the  law  should  be  contained  therein.  And  there- 
fore I  suppose  that  it  will  be  hard  to  find  in  JValura  Bre- 
vium, where  an  action  upon  the  case  or  a  writ  of  forcible 
entry  lie ;  and  so  I  suppose  it  will  be  of  divers  other 
actions  upon  statutes  if  it  were  thoroughly  searched. 

And  so  I  think,  that  the  said  objections  be  but  of  small 
strength  and  of  small  effect  to  prove  that  a  subpoena  may 
not  lie  in  some  cases. 


FINIS. 


INDEX. 


Abatement :  If  an  action  real  be  sued  against  any  man   that  has  nothing 
in  the  thing  demanded,  the  writ  shall  abate,  32. 
But  not  by  alienation  of  the  tenant  hanging  the  writ,  32. 
Nor  by  his  being  made  a  knight,  32. 
Nor  by  a  woman's  taking  a  husband,  pendente  lite,  32. 
But  if  demandant  or  plaintiff  enters  into  the  thing  demanded,  hanging 
the  writ,  it  abates  it,  33.      See  Formedon- 
Abbots:  Abolished,  32,  209. 
Accessary  :  How  accessaries  shall  be  tried,  32. 

Action :  If  John  at  Stile  lets  a  chamber  to  Henry  Hart,  and  it  is  agreed 
that  said  Henry  should  go  to  board  with  said  John,  and  said  Henry 
to  pay  for  the  chamber  and  boarding  a  certain  sum,  etc.,  this  is  properly 
called  a  concord,  and  an  action  lies,  174. 
If  a  man  says  to  another,  heal  such  a  poor  man  of  his  disease,  or  make 
an  highway,  and  I  will  give  thee  thus  much,  an  action  lies,  and  there 
is  no  occasion  for  the  promise  to  be  in  writing,  177. 
But  if  two  come  to  a  shop,  and  one  of  them  contracts  for  goods,  and  the 
seller  does  not  care  for  trusting  him,  whereupon  the  other  says,  let 
him  have  them,  and  I  will  undertake  he  shall  pay  you-     This  is  an 
agreement  within  the  statute,  and  must  be  reduced  inlo  writing,  in 
order  to  ground  an  action,  17S. 
If  a  man  says  to  another,  fast  for  me  all  the  next  Lent,  and  I  will  give 

thee  20/.,  and  he  performeth  it,  an  action  lies,  17S. 
And  likewise  if  a  man  says  to  another,  marry  my  daughter,  and  I  will 
give  thee  20/.,  an  action  lies,  but  the  promise  must  be  in  writing,  17S. 
No  action  lies  upon  a  decree  made  by  convocation,  318.     See  Nudum 
factum  and  Pro::iise. 
Administrator :  Shall  have  goods  and  chattels,  21. 
Must  pay  debts  according  to  the  common  law,  225. 

May  be  charged  to  him  that  can  first  get  his  judgment  against  him,  225. 
Aicl :  Writ  of,  fallen  into  disuse,  13S. 
Alien:  How  the  sons  of  an  alien  shall  inherit,  20. 

Amerciament :  For  amerciament  in  a  leet,  the  lord  may  distrain,  126. 
But  for  amerciament  in  a  court  baron  he  can   not  distrain,  unless  by 
prescription,  126.     See  Debt  and  Distress. 
Annuity :  For  an  annuity  a  writ  of  annuity  is  the  proDer  action,  S7. 
Is  not  assets,  88- 

25    •  (385) 


386  Index. 

Is  no  freehold,  S8. 
Cannot  be  put  in  execution,  88. 
Nor  be  entailed,  88. 
Appropriation,  309,  310- 
Attainder :  Of  the  son  the  land  shall  escheat  that  the  fa'iher  hath,  though 

he  has  other  sons,  28  • 
Attaint ;  How  far  in  use,  51. 
Attornment :  To  tenant  for  life  is  attornment  to  him  in  reversion,  160. 

Now  almost  rendered  unnecessary  by  statute,  160. 
Bailiff:  What  acts  of  a  bailiff  of  a  manor  are  good,  and  what  not,  235. 
Bailment :   How  a  man   shall  be  charged   upon  bailment,  or  finding  the 

goods  of  another,  220. 
Bastard  and  Bastardy  :  Is  he  who  is  born  before  espousals,  20. 
Cannot  inherit,  20. 

If  a  man  is  certified  bastard  by  the  ordinary,  he  is  bound  by  that   cer- 
tificate, because  it  is  the  highest  trial  of  bastardy,  116. 
But  if  bastardy  is  laid  in  one  that  is  a  stranger  to  the  writ,  the  bastardy 
shall  be  tried  by  twelve  men,  by  which  he   in  whom   the    bastardy  is 
laid  shall  not  be  concluded,  because  he  can  not  have  an  attaint,  116. 
Father  may  leave  goods  to  his  bastard,  247. 

If  a  man  give  all  his  lands  and  goods  to  his  children,  whether  a  bastard 
shall  have  any  part,  247. 
Benefice:  Patron  shall  have  six  months  to  present  to  a  benefice,  199. 

From  what  time  the  six  months  shall  be  accounted  in  case  of  death,  cre- 
ation, cession,  resignation,  deprivation,  or  union,  199. 
There  can  be  no  union  of  a  benefice 'but  the  patron  must  have   knowl. 

edge,  199. 
A  benefice  is  void  when  a  parson  is  made  a   bishop   without   a   com- 

mendam,  216. 
So  if  a  parson  accepts  another  benefice  without  a  licence,  216. 
Or  resigns,  216. 

Or  is  deprived,  216.     See  Presentation. 
Benefit  of  Clergy :  How  it  stood  at  common  law,  and  how  it  stands  at  this 

day,  93. 
Billa  vera  :  The  effect  of,  276,  277. 

Bishop  :  Bishop  may  examine  the  ability  of  the  incumbent;   and  if  he  find 
him  by  examination  not  able  to  have  cure  of  souls,  he  may  then  refuse 
him,  and  the  patron  must  present  another;  and  if  he  is  able,  then  the 
bishop  must  admit  and  institute  him,  1S9. 
Of  what  goods  a  bishop  may  make  a  gift  or  bequest,  and  of  what  not, 
222. 
Borrower  and  Lender:  If  a  house  by  chance  fall  upon  a  horse  that  is  bor- 
rowed, who  shall  bear  the  loss,  219. 
Bulls:  No  bulls  can  be  brought  from  Rome,  214.     See  Excommunication. 

Capias  ad  satisfaciendum.,  where  it  lies,  30, 
Chancery :  Cannot  examine  a  judgment  at  law,  50. 
But  if  unfairly  obtained,  may  prevent  any  advantage  being  taken  of  it,  51. 


Index.  387 

Chancellor     Is  made  by  delivering  the  great  seal  to  him,  and  taking  an 

oath  to  serve  the  king  and  his  people  faithfully  in-his  office,  19. 
Challenge     Where  a  challenge  may  be  taken  on  defatdt  of  hundredors,  24. 
How  many  jurors  ma}'  be  challenged  upon  an   indictment  or  appeal,  29. 
Charitable  Use:  What  disposition  shall  be  good  as  a  charitable  use,  223. 
Church,  245,  246. 

Civil  Lata  :  In  the  civil  law,  if  a  man  have  another's  goods  with  a  title 
three  years,  thinking  he  has  right  to  them,  it  gives  him  a  title,  68. 
What  cedere  bofiis  i*,  84. 
Clausum  f regit :  Where  it  lies,  30. 

Clergyman  :  How  a  man  may  be  punished  for  laying  violent  hands  upon 
a  clergyman,  202. 
Is  bound  to  contribute  to  parliamentary  or  parochial  impositions,  246. 
Ecclesiastical  court  can  not  award  damages  for  beating  a  clergyman,  315. 
Habits  of,  316. 

Can  not  be  impannelled  upon  a  jury,  329. 
But  may  be  joined  with  laymen  upon  a  writ  to  enquire  de  jure  patron- 

aius,  330. 
Or  in  mandates  for  inquisitions  to  be  made  of  dilapidations,  330. 
Condition  :  If  a  man  enfeoffs  another  in  fee,  upon  condition  that  he  shall 
not  alien,  the  condition  is  void,  65,  86,  210. 
So  if  he  devises  in  fee  upon  condition  that  the  devisee  shall  not  alien,  65. 
No  man  shall  take  advantage  of  a  condition  but  he  who   is  party  or 

privy,  159. 
If  a  feoffment  is  made  upon  condition  that  the  feoffee  shall  pay  rent  to 
a  stranger,  if  the  rent  is  not  paid,  the  feoffor  may  re-enter  by  virtue  of 
the  words  upon  condition,  161. 
If  a  condition  is  broken,  it  is  lawful  for  the  feoffor  to  re-enter,  by  which 

re-entry  he  disproves  all  mesne  acts,  20S. 
If  there  is  a  condition  upon  a  gift  in  tail  that  the  donee  shall  not  alien 
by  feoffment  in  fee  or  fine  at  common  law,  the  condition  is  good,  211. 
So  a  condition  that  is  made  to  restrain  mortmain,  is  good,  211. 
So  a  condition  which  restrains  alienation  to  a  particular  man  is  good, 
211. 
Colour :  Giving  of  colour,  why  it  is,  and  to  what  purpose,  269. 
Contract :  To  make  a  good  contract,  there  must  be  quod  pro  quo,  178.  See 

Nudum  pactum. 
Copyhold :  Sprung  from  villainage,  155. 
Custom  is  the  life  of  a  copyhold,  155. 
Is  held  at  the  will  of  the   lord,  according  to  the  custom  of  the  manor. 

156. 
While  the  services  are  performed,  copyholds  have  a  sure  estate,  156. 
Cosenagc  :  Writ  of,  fallen  into  disuse,  140. 
Counsel:  For  prisoners  on  an  indictment  or  appeal,  256. 
Court  Baron :  Incident  to  every  manor,  19. 
County  Court:  Is  in  every  shire,  iS. 

Court  of  King's  Bench  :  Chief  Justice  of,  is  made  by  writ,  18. 
Court  of  Piepowders :  Incident  to  a  fair  and  market,  19. 


388  Index. 


Court  Spiritual:  May  hold  plea  of  a  temporal  thing,  but  must  judge  af- 
ter the  temporal  law,  1S6. 

Cannot  award  damages,  202. 

A  suit  will  be  there  for  calling  another  whoremaster,  a  cuckold,  or  a 
cuckoldy  knave,  or  for  calling  a  woman  a  whore  (except  in  London 
and  Southwark)  a  jilt,  a  strumpet,  a  bawd,  324. 

So  likewise   lor  calling  a  clergyman  an  adulterer  or  an  heretick,  324. 
See  Clergyman,  Prohibition,  and  Mortuary,  and  Perjury. 
Curtesy  by  Tenant:  A  man  shall  be  tenant  by  the  curtesy  of  a  fee  simple, 
fee  tail  general  or  special,  21. 

Must  have  a  child  by  his  wife,  21. 

A  man  shall  not  be  tenant  by  (he  curtesy  of  his  wife's  land,  unless  she 
has  possession  in  deed,  143. 

But  he  shall  be  tenant  by  the  curtesy  of  a  rent,  though  his  wife  die  be- 
fore the  day  of  payment;  and  likewise  of  an  advowson,  though  she 
die  before  the  avoidance,  143. 

£hi.  Whether  he  shall  not  be  tenant  by  the  curtesy,  notwithstanding  the 
advowson  becomes  void  during  the  coverture,  and  the  wile  (.lies 
after  the  six  months  past,  and  before  any  presentment  by  the  husband, 
and  the  ordinary  presents  by  lapse,  143.  See  Waste,  Presentation,  and 
Trust. 
Custom:  Against  God's  law  is  void,  15. 

Cannot  be  changed  or  altered  without  the  aid  of  parliament,  19. 

Of  borough  English,  what,  35. 

Cannot  break  a  positive  law,  243. 
Custom  of  London :  By  the  custom  of  London,  freemen  by  their  testament 
inrolled  may  bequeath  their  lands  to  whom  they  will,  except  to  mort- 
main;  ar.d  if  they  are  citizens,  may  bequeath  them  to  mortmain,  35. 
Damages:  If  tenant  for  term  of  life  is  disseised,  and  die,  and  the  dis- 
seisor dieth,  and  his  heir  enters  and  takes  the  profits;  and  after  the 
reversioner  recovers  the  land  against  the  heir,  he  can  recover  no 
damages,  139. 

P"or  breaking  pound  the  distrainers  shall  recover  treble  damages  if  the 
beasts  are  impounded  for  rent,  192. 
Debt :  Lies  against  a  gaoler  for  an  escape,  229. 

Lies  for  an  amercement  in  a  court  leet,  ic6. 
Dcodand :  Deodand  is  forfeited  to  the  king,  unless  lords  of  franchises  are 

intitlcd  to  it  by  grant,  no,  266. 
Descent:  By  the  laws  of  descent,  the  eldesl  son  is  only  heir  to  his  ances- 
tor, 19. 

And  if  no  sons  but  daughters,  then  all  the  daughters  are  heirs,  19. 

So  if  sisters  and  others  kinswomen,  19. 

Lands  cannot  ascend  from  son  to  father  or  mother,  nor  any  other  an- 
cestor on  the  right  line,  19. 

How  brothers  shall  inherit  each  other,  20. 

How  the  inh  iritance  shall  be  when  the  ancestor  takes  by  descent  or 
purchase,  20. 

He  that  makes  continual  claim  shall  not  be  barred  by  a  descent  cast,  47. 


Index.  389 

Disagreement:  A  bishop  of  a  devise  or  remainder  that  is  made  to  him  and 

the  dean  and  chapter,  may  not  disagree  without  tl  :    206. 

Nor  can  a  dean  of  a  devise  or  remainder  made  to  him  and  the  chapter, 

204. 
Nor  can  the  ma  ter  of  a  college  <>f  a  dey  i  e  to  him  and  his  brethren  dis- 
free  withoul  th  i  bi    thren,  205.     See  Bishop- 
Disciit :   It  seems  that  if  a  counsi  llor  gives  counsel  which  he  knows  to  bo 

wrong,  he  is  liable  to  an  ■  '■'■  157. 

Disclaimer:  [fthe  d  :an  will  disclaim  in  the  lands  that  he  has  by  devise  01 
remainder,  that  disci  timer  without  the  chapter  is  void,  205. 
And  it"  a  master  of  a  college  will  disclaim  in   the   lands   that  he  has  by 

devise  or  remainder  without,  the  brethren,  it  is  void,  205. 
But  the  dean  may  refuse  to  take  a  gift  or  grant  of  lands  or  goods,  or  of 

a  reversion  made  to  him  and  the  chapter,  205. 
On  a  praecipe  quod  reddat,  207. 
Desseisin:   \\  hat  till  i     r  has,  32. 

If  a  disseisin  is  made  to  another  man's  use,  he  to  whose  use  the  disseisin 
is  made  hath  nothing  in  the  land,  nor  the  disseisor  till  he  agree,  204. 
Distress  :  May  be  for  rent  reserved  upon  a  gift  in  tail,  lease  for  life,  j'ears 
or  at  will,  23. 
May  be  ot"  the  beasts  of  a  stranger,  23. 
Cannot  be  taken  on  an  obligation  or  contract.  122. 

May  be  taken  for  damage  feasant,  and  if  reasonable  tender  of  amends  is 
made  by  the  owner  before  the  beasts  are  impounded,  and  the  distrainer 
accept     it,  he  is  not  bound  to  restore,  12  (.. 
A  man  may  distrain  for  real  service,  suit  of  court  fealty,  and  relief,  23, 

No  distress  can  be  taken  for  rent  but  by  him  who  has  the  reversion,  un- 
less a  distress  is  expressly  reserved,  23,  125. 

No  distress  can  be  for  rent  reserved  on   a  lease  for  years,   after  the  de- 
termination of  the  lease,  unless  the  distress  is  made  six  months  after- 
wards, and  during  the  continuance  of  the  landlord's  title,  and  the  pos- 
jion  of  the  tenant  from  whom  the  arrears  are  du  '.  120 

If  a  township  is  amerced,  and  the  neighbours  assess  a  sum  certain  upon 

everj  tant,  and  agree,  that  if  it  is  not  paid  by  such  a  day,  that 

tain  persons  shall  distrain  at  such  a  day,  the  distress  is  lawful,  1:7. 

If  a  man  make-  a  -2, i 1 1  in  tail  to  another,  reserving  fealty  ami  certain 
rent,  and  alter  he  grants  away  the  fealty,  reserving  the  rent  and  rever- 
sion to  himself,  he  may  distrain  for  the  rent.  127. 

A  distress  may  be  lor  a  rent  seek.   127. 

And  it'  rent  is  assigned,  to  make  a  partition   or  assignment  of  dower 
;al,  a  distress  may  be  taken  for  il,   127. 

A  man  cannot  distrain  in  the  night  but  fir  damage  feasant.  127. 

No  distress  of  cattle  can  be  driven  out  of  the  hundred  where  it  is  taken, 
unless  to  a  pound  overt  in  the  same  county,  within  three  miles  distance, 
191.     See  Amerciament. 
Dower:   Wife   in  titled   to  one-third  o(  the  husband's  inheritance  for  her 
(.lower,  22,  82. 


390  Index. 


May  be  of  a  seisin  in  deed  or  law,  143. 

Wife  must  be  of  the  age  of  nine  years  at  the  death  of  her  husband,  21. 

By  the  common  law,  a  woman  was  not  intitled  to  damages  in  dower,  139. 

But  they  are  now  given  by  the  statute  of  Merton,  139. 

Immediately  after  the  death  of  her  husband,  the  widow  ought  to  have 
her  dower  if  she  ask  it,  139. 

She  is  intitled  to  costs,  as  well  as  damages,  139. 

Can  recover  damages  from  the  death  of  the  husband  only  where  the  ten- 
ant cannot  say  that  he  is  and  hath  been  ready  to  yield  dower,  141. 
See  Trusts  and  Gavelkind. 
Easter :  Feast  of,  when  it  shall  be  celebrated,  322. 
Escheat:  If  there  is  no  heir  general  or  special,  the  land  escheats  to  the 

lord,  19. 
Estopfle  :  Where  it  will  bind,  and  where  not,  55. 
Exchequer :  No  officer  of  the  exchequer  shall  put  any  clerk  under  him  but 

such  as  he  will  answer  for,  230. 
Excommunication  ;  Is  no  plea  in  a  qui  tarn,  15. 

He  who  is  excommunicated  for  a  wrong,  if  he  is  able  to  make  satis- 
faction, ought  not  to  be  assoiled,  unless  he  does  satisfy,  201. 

But  if  he  is  not  able  to  make  amends,  he  must  be  assoiled,  if  sufficient 
caution  is  taken  to  satisfy,  201. 

A  man  cannot  be  excommunicated  for  debt  or  trespass,  201. 

In  what  case  the  king  may  write  to  the  spiritual  judge,  commanding 
him  that  he  make  the  party  his  letters  of  absolution,  upon  pain  of 
contempt,  202. 

For  a  wrongful  excommunication,  prozmunire  lies,  or  the  spiritual  judge 
may  be  punished  by  an  action  upon  the  case  or  an  indictment,  202. 

Where  the  spiritual  court  ought  to  make  absolution  without  any  satis- 
faction, 202. 

A  man  may  be  excommunicated  for  not  inclosing  the  church  yard,  or  not 
repairing  the  church,  202. 

In  what  case  an  action  will  lie  for  refusing  to  make  the  party  his  letters 
of  absolution,  203. 

The  law  will  not  suffer  an  excommunication  to  be  certified  under  the 
pope's  bull,  214. 
Executor:  Intitled  to  goods  and  chattels  real  and  personal,  21. 

Not  answerable  for  the  trespass  of  his  testator,  128. 

Must  pay  funeral  expenses  before  all  other  things,  129. 

Has  the  whole  disposition  of  the  goods  of  the  testator,  130. 

Has  authority  to  recover  all  debts  due  to  the  testator,  132. 

Where  debts  are  in  equal  degree,  must  pay  him  that  can  first  obtain 
judgment,  131. 

Has  a  power  to  delay  actions  by  essoin,  imparlance,  or  dilatory  plea, 

Is  guilty  of  a  devastavit  if  he  pays  legacies  before  lawful  debts,  132. 
Cannot  pay  a  debt  upon  an  obligation  whereof  the  day  is  yet  to  come 
before  one  that  is  past;  but  if  he  to  whom  the  debt  is  owing  forbear 


Index.  ^oj 

till  after  the  clay  of  the  other  obligation  is  past,  then  he  may  pay  him 
without  danger,  132. 
May  bear  a  lawful  but  not  covenous  favour  to  a  creditor,  132. 
Is  now  liable  to  pay  debts  upon  simple  contract,  135. 
Should  be  careful  how  he  pays  legacies  where  his  testator  dies  much  in- 
debted, without  taking  security  to  refund,  or  putting  himself  under  the 
direction  of  a  court  of  equity,  13^. 
Damages  recovered  in  an  action  are  but  a  chattel,  and  go  to  the  ex- 
ecutor, 137. 
The  coat  armour,  shield  and  sword,  and  such  things  as  are  set  up  at  the 
burial  of  a  nobleman,  belong  to  the  executor,  306. 
Fair:   By  a  contract  made  in  a  fair,  the  property  is  altered  except  in  cer- 
tain cases,  67. 
Fealty:  Cannot  be  severed  from  the  reversion,  127. 
Felony:  To  steal  to  the  value  of  i2r/,  or  above,  is  felon v,  29. 
Feoffment:  A  freehold  cannot  pass  by  feoffment  without  livery  of  seisin  on 
the  land,  or  in  sight  of  it,  22. 
A  feoffment  of  two  acres  of  land  lying    in    two    counties,  and    livery 
only  of  one  in  the  name  of  both,  the  acre  only  passes  of  which  the  livery 
is  made,  172. 
But  it  had  been  otherwise  if  both  acres  had  been  in  one  countv,  57. 
And  if  the  scite  of  a  manor  extends  into  two  counties,  and  livery  is  only 
made  of  that  part  which   lies  in   one  county,  yet  the  whole  manor 
passes,  57. 

By  a  feoffment  of  a  manor,  the  advowsons  pass  as  incidents,  57. 

But  in  the  case  of    the  king  they  do  pass,   unless  they  are    expressly 

named,  57. 
By  a  feoffment  to  two  men   and  a  woman  in  fee,  and  the  intermarriage 

of  one  of  the  men  with   the  woman,  and  the  alienation  and  death  of 

the  husband,  the  woman  only  intitled  to  one-third,  159- 
But  if  the  intermarriage   had  been  before  the  first  feoffment,  then  the 

woman,  notwithstanding  the  alienation,  would  have  been  intitled  to  a 

moiety,  59. 

If  a  man  makes  a  deed  of  feoffment  to  another,  and  deliver  the  deed  to 
him  as  his  deed,  he  to  whom  the  deed  is  delivered  has  no  title  before 
livery  of  seisin  made  to  him,  but  he  may  occupy  at  the  will  of  the 
feoffor,  172. 
Now  almost  superseded  by  lease  and  release,  22. 
Fee  Simple  :  In  the  highest  estate  in  law,  210. 
/'.  es  :  For  probate  of  a  will,  337. 
Ficrc  Facia*  :  Where  it  lies,  30. 

Fine:  At  common  law  a  stranger  had  only  one  year  after  a  fine  levied   to 
make  their  claim,  66. 
Has  now  five  years,  66. 

An  entry  to  avoid  a  fine  must  be  an  actual  entry,  66. 

If  a  feme  covert  for  dread  of  her  husband,  or  by  compulsion  of  him 
levy  a  fine,  yet  the  woman  after  her  husband's  death  shall  not  be  ad- 
mitted to  avoid  the  fine,  263. 


392 


Index. 


Forcible  Entry  :  For  forcible  entry  without  title,  a  man  may  recover  treble 

damages,  and  treble  costs,  36. 
Forfeiture  :  If  a  man  is  outlawed  for  felony,  he  forfeits  real  and  personal 
estate  to  the  lord,  2S. 
Goods  stolen  and  seized  for  the  king,  or  waived,  ai-e  forfeited  to  the  king, 

unless  an  appeal  or  indictment  is  sued,  no. 
Of  life,  lands,  and  goods,  for  murder,  227.      See  Outlawry. 
Formedon:  If  tenant  in  tail  is  disseised,  and  the  disseisor  dies  seised,  the 
heir  may  bring  a  formedon,  54. 
No  damages  in  a  formedon,  54. 
In  formedon,  if  plaintiff  does  not  make  himself  heir  to  him  that  was  last 

seised,  this  maj'  be  pleaded  in  abatement,  121. 
Now  seldom  brought,  54. 
Framk  Fees  :  Land  which  is  frank  fee  is  not  pleadable  in  a  court  of  ancient 

demesne,  106. 
Freehold  :  How  it  will  pass,  22. 

Gaols:  Gaols  shall  be  adjoined  to  the  shires,  and  the  sheriff  shall  have 
the  keeping  of  them,  and  must  put  in  such  under-guardians  for  which 
they  will  answer,  230. 
Gavelkind:  By  the  custom  of  gavelkind,  all  the  brethren  shall  inherit  to- 
gether, 34,  56. 
And  if  the  father  is  hanged  for  felony,  the  sons  shall  inherit,  but  not  if 

he  is  hanged  for  treason,  35. 
In  gavelkind  the  wife  shall  have  half  the  husband's  land,  as  her  dower 

while  she  remains  sole,  35. 
And  the  husband  half  the  inheritance  of  the  wife,  though  he  have  no 

issue,  35. 
By  the  custom,  an  infant  of  the  age  of  fifteen  may  make  a  feoffment,  35. 
Divers  lands  disgavelled  in  Kent,  56. 
General  Issue  :  In  assise,  what,  270. 
In  trespass,  what,  270- 

No  plea  can  be  pleaded  which  amounts  to  the  general  issue,  270. 
Gift:  If  a  gilt  is  made  to  a  man  who  refuseth  to  take  it,  the  gift  is  void, 
204. 
And  if  it  is  made  to  a  man  who  is  absent,  the  property  vests  in  him  till 
he  disagrees,  204. 
Grants:  If  donor  grants  to  donees  in  tail  that  they  shall  not  be  punishable 

in  waste,  it  is  void,  103. 
Goods  Derelict :  If  goods  are  found  which  were  left  by  the  owner  as  for- 
saken, who  hath  right  to  them,  267. 
Heir:  May  have  goods  by  custom,  225. 
Who  is,  19. 

It'  the  father  bind  him  anil  his  heirs  to  the  payment  of  a  debt,  and  die, 
in  that  case  the  son  shall  not  be  bound  to  pay  the  debt,  unless  he  hath 
ets  by  descent  from  his  father,  261. 
Where  a  man  is  vouched  as  heir,  he  may  enter,  as  he  that  hath  nothing 
by  descent,  262. 


Index.  393 

Heretich  and  Heresy :  An  heretick  cannot  make  executors,  195. 
May  l)f  punished  by  ecclesiastical  censures,  [95. 
And  if  an  heretick  in  maintenance  of  li is  errors  sets  up  conventicles, 

and  raises  factions,  he  may  be  indicted,  195. 
Denying  the  Trinity  is  an  heresy  which  maybe  punished  by  the  civil 
magistrate,  196. 
Heriot :  For  heriot  service,  the  lord  may  distrain  or  seize,  127. 

But  for  heriot  service  he  can  only  seize,  127. 
Hospitals  :  Ordinaries  to  enquire  of  hospitals  unless  there  are  visitors  ap- 
pointed, 339. 
Hundreds:  To  be  adjoined  to  the  counties,  231. 

And  if  the  sheriff  holds  them  in  his  own  hands,  he  must  put  in  such 
bailiffs  for  which  he  will  answer,  232. 
Husband  and   Wife:   Husband  absolutely  intitled  to  chattels  personal  of 
his  wife  by  the  intermarriage,  21. 
And  her  chattels  real,  if  he  survives  her,  21, 

But  if  he  gives  them  away,  the  interest  of  his  wife  is  determined,  21. 
If  the  wife  disagree  to  a  gift,  and  the  husband  agree,  the  gift  is- good, 

205. 
If  lands  in  case  of  a  husband  and  wife  are  charged  with  damages,  or 
charged  with  more  rent  than  the  land  is  worth,  and  the  husband  dies, 
the  wife  shall  not  be  saddled  with   the  damages  or  rent,  if  she  refuse 
the  occupation  of  the  ground  after  her  husband's  death,  205. 
And  if  the  husband  outlive  the  wife,  and  make  his  executors,  and  die, 
the  executors  may  refuse  the  lease  if  they  have  not  goods  sufficient  to 
pay  the  rent,  206. 
Whether  the  wife  may  give  away  goods,  244. 
Whether  a  gift  between  husband  and  wife  is  good,  245. 
Indictment :  Wanting  what  words,  good,  276. 
Infant  :  Shall  not  he  barred  by  a  descent  cast,  47. 
The  feoffment  of  an  infant  is  not  void,  but  voidable,  61. 
The  age  of  an  infant,  to  give  or  sell  his  land,  is  twenty-one,  193. 
But  he  may  be  charged  for  his  meat,  drink,  or  apparel,  before  that  age, 

193- 

May  act  as  executor  at  seventeen,  193. 

Is  not  of  age  in  the  civil  law  till  twenty-five,  193. 
May  disagree  to  a  gilt,  205. 

Where  he  shall  be  excused  of  corporal  pain,  251. 
Is  punishable  for  an  escape,  251. 

Is  supposed  to  arrive  at  years  of  discretion  at  fourteen,  2^2. 
Bui  may  he  capax  doli  before,  252. 
Insolent  Debtors:    Statutes  relating  to.  85. 

Intent :  In  many  cases  is  void,  if  it  be  not  according  to  the  rules  of  law, 

159- 

A  man  makes  a  feoffment  by  deed  indented,  by  which  it  is  agreed  that 

the  feoffee  shall  pay  to   A.  B.  and    his   heirs   a   certain    rent    at   certain 

days;   and  if  he  pay  not  the   rent,  then   it  is  agreed,  that  A.  B.  or  his 


394  Index. 

heirs  shall  enter.    A.  B.  shall  have  his  rent  by  the  intent  of  the  feoffor, 
but  he  cannot  enter  into  the  land,  165,  167,  170,  173. 
In  felony  or  murder,  how  punishable  formerly  and  at  this  day,  226. 
Is  punishable  in  treason,  226. 
Issues  :   If  a  man  that  has  land  for  life  is  impanelled  upon  an  inquest,  and 
loseth  issues,  and  dies,  they  may  be  levied  upon  him  in  reversion,  62. 
Joint   Tenants:  If  one  joint  tenant  receives  more  than  his  share  of  the 

profits,  the  other  may  have  an  account  against  him,  53. 
Jointure  :  Tenant  in  tail  may  suffer  a  recovery  in  order  to  make  a  jointure 
upon  his  wife,  S3. 
What  alienation  by  the  wife  against  the  statute  n  H.  7,  c.  20,  of  jointures 

is  good,  89. 
And  if  the  husband  forfeits  issues,  and  dies,  they  shall  be  levied  on  the 
lands  of  the  wife,  63. 
Judges  Spiritual :  Are  bound  to  take  notice  of  the  common  law,  17,  182. 
Judgment :  Of  death,  where  it  must  be  precisely  pursued,  and  where  not, 

227. 
Jury:  In  civil  cases  must  come  from  the  body  of  the  county,  23. 
Cannot  determine  what  is  a  maxim  of  law,  25. 
Must  not  be  of  affinity  to  the  parties,  23. 
May  eat,  when,  and  at  whose  charge,  26S. 
When  they  may  be  fined,  269. 
When  a  new  inquest  shall  be  awarded,  269. 
Jus  Gentium:  Contracts  are  grounded  upon  the  law  that  is  called  jus  gen- 
tium, 61,  171. 
King:  His  coronation  oath,  18. 

The  king  can  disseise  no  man,  and  no  man  can  disseise  the  king,  30. 
The  head  in  every  parliament,  72. 

The  king,  as  lord  of  the  narrow  seas,  is  bound  to  scour  the  seas  of  pirates 
and  robbers,  26S.      See  Presentment  and  Prerogative. 
Knight  Service:  Abolished,  26. 

Larceny:  To  steal  under  the  value  of  lid.  is  only  petit  larceny,  29. 
La-vs :  Are  of  four  kinds,  Introd.  2. 
Eternal,  what,  3. 

Eternal  are  the  fountain  of  all  other,  3. 
Eternal  may  be  known  three  ways,  4. 
Of  reason  and  nature,  what  and  what  not,  4,  5. 
Of  God,  what,  and  why  so  called,  7,  S. 
Of  man,  what,  and  why  so  called,  10. 
Common,  what  is  said  to  be,  18. 
Legacies:  To  be  sued  for  in  the  spiritual  court,  182. 

Livery  and    Seisin:  A    term    of   jears    will    pass    without    livery    and 
seisin,  23. 
Where  a  court  of  equity  will  supply  it,  62. 
Marlebridgc :  Statute  of,  a  remedial  law,  as  well  as  a  penal  one,  103. 
Mass:  Forbid  to  be  said  or  heard,  221. 

If  a  man  gives  money  to  have  mass  said  for  him,  it  is  a  superstitious  be« 
quest,  221. 


Index.  395 


Master  and  Servant :  Master  is  chargeable  by  the  act  of  his  servant,  and 
where  not,  233,  243. 
Shall  not  answer  for  the  servant'-,  beating  of  one,  233. 
Shall  answer  for  things  bought  by  his  servant,  and  where  not,  234. 
Shall  answer  for  things  sold  by  his  servant,  and  where  not,  234. 
If  a  fire  happens  in  a  man's  house  through    negligence  of  a   servant, 
such  servant  shall  forfeit  iool-  or  be  sent  to  the  house  of  correction, 

234- 

And  if  the  servant  bear  fire  negligently  in  the  street,  and  the  house  of 

another  is  burnt,  no  action  lies  against  the  master,  234. 
A  man  shall  not  be  charged  for  his  servant's  robbing  the  chamber  of  a 

lodger,  unless  he  is  a  common  hostler,  234. 
Master's  goods  are  not  attachable  for  his  servant's  debts,  236. 
A  man  may  have  an  action  against  another  for  retaining  his  servant 
after  notice,  254. 
Market  Overt:  Changes  the  property  of  things,  where  not,  254. 
Maxims  of  Law  :  Neighbours  are  presumed  to  know  the  deeds  of  neigh- 
bour-, j  4. 
Ignorance  of  the  law  excuses  no  man,  except  it  is  invincible,  77. 
A  common  error  maketh  a  right,  77. 
The  law  compels  none  to  impossibilities,  114. 

lie  who  take-  the  advantage  must  likewise  take  the  disadvantage,  114. 
A  mischief  should  be  suffered  rather  than  an  inconvenience,  116. 
No  time  runneth  against  the  king,  215. 
Malice  supplies  the  want  of  age,  2^2. 
Metropolitan  :  If  it  come  in  variance,  whether  he  that  is  presented  be  able 
or  not,  it  shall  be  tried  by  the  ordinary;  but  if  he  is  party,  by  the  me- 
tropolitan, 1S9. 
Mort  d 'ancestor :  Formerly  in  use,  but  cannot  now  be  brought,  137,  13S. 
Mortmain:  Statutes  relating  to,  200 
Mortuary:  To  be  sued  for  in  the  spiritual  court,  297. 

Murder:   If  a  man  who  is  no  officer  would  arrest  a  man  who  is  outlawed, 
abjured,  or  attainted  of  murder  or  felony,  and  he  disobeys  the  arrest, 
and  by  reason  of  the  disobedience  is  slain,  the  other  is  not  guilty  of 
murder,  22S. 
But  if  a  capias  is  directed  to  the  sheriff  to  take  a  man  in  an  action  of 
debt  or  tie-pass,  there   no  man   mar  take   him,  but   he   who   has   au- 
thority from   the   sheriff;    and    if  any   man   attempts,   of  his   own    au- 
thority, to  take  him,  and  he  resisted,  and  in  the  resistance  is  slain,  he 
that  would  have  taken  him  is  guilty  of  murder,  22S- 
Whether  a  man  sh  .11  be  said  guilty  of  murder  by  commandment,  counsel 
or  assent,  24s. 
Mute  :  How  a  man  was  formerly  punished  for  standing  mute  on  an  appeal 

and  indictment,  and  how  he  is  to  be  dealt  with  at  this  day,  227. 
Night:   Is  after  sun-set,  and  before  sun-rising,  1:;. 

Nudum  pactum  :  If  a  man  says  to  another  man.  I  sell  thee  all  my  lands  or 
goods,  and  nothing  is  assigned  that  the  other  shall  give  or  pay,  it  is  a 
nude  contract,  175. 


396 


Index. 


And  where  a  man  promises  another  to  give  him  certain  money  such  a 
day,  or  to  huild  an  house,  or  to  do  him  certain  service,  and  nothing  is 
assigned  for  the  money,  for  the  building,  or  the  service,  these  are  nude 
contracts,  175. 
Also  if  a  man  promises  another  to  keep  him  such  certain  goods  safely 
to  such  a  time,  and  after  he  refuse  to  take  them,  there  lieth  no  action 
against  him,  175. 
But  if  he  takes  them,  and  they  are  lost  through  his  negligent  keeping, 
there  action  lieth,  175. 
Obligation  ;  An  obligation  cannot  be  avoided  by  a  bare  promise,  3S. 
If  a  man  is  bound  in  an  obligation  to  repair  the  houses  of  him  that  he 
is  bound  to,  by  such  a  certain  time  as  oft  as  need  shall  require,  and 
after  the  houses  have  need  to  be  repaired,  but  he  who  is  bound  knows 
it  not,  that  ignorance  shall  not  excuse  him,  254. 
Ordinary:  May  commit  administration  of  him  that  dies  intestate,  224. 

Where  he  may  grant  letters  ad  colligendum  bona  defuncti,  225. 
Outlawry:  What  a  man  forfeits  by  outlawry  in  a  personal  action,  107. 

The  process  in  outlawry,  ioS- 
Parish  :  Parishes,  division  of,  332. 
Parliament :  The  highest  court  in  the  realm,  73. 
Parson  :  Of  what  goods  a  parson  may  dispose,  and  what  not,  222. 
Penance:  Money  may  be  taken  as  a  commutation   for  corporal   penance; 
and  if  it  is  not  paid,  a  suit  may  be  instituted  for  it  in  the  ecclesiastical 
court,  315. 
For  defamatory  words,  penance  is  enjoined  at  the  discretion  of  the  or- 
dinary, 325. 
Pension  :  If  gut  by  prescription,  must  be    by  a  prescription   time  out  of 
mind,  306. 
Pension  claimed  by  prescription,  how  to  be  sued  for,  325. 
Perjury  :  If  a  man  wages  his  law  untruly  in  an  action  of  debt  upon  a  con- 
tract in  the  king's  court,  he  cannot  be  sued  for  the  perjury  in  the  eccle- 
siastical court,  1S1. 
Pope:  His  power  destroyed,  iSS,  217,  21S,  24S. 

Pound  Overt :  A  pound  overt    i     every  place  where  beasts  maybe  put  in 
lawfully,  not  making  the  owner  an  offender  for  being  there,  191. 
If  the  owner  of  the  beasts  break  the  pound,  the  distrainer  may  have  a 
writ  of  pound  breach,  or  an  action  upon  the  case,  193. 
Prerogative:  The  king  by  his  prerogative   is  lord  paramount  of  all  the 

benefices  within  the  realm,  213.     See  Presentation. 
Prescription  :   No  prescription  in  lands  makes  a  right,  27. 
But  a  prescription  tor  rent  and  profits  out  of  land  does,  27. 
A  prescription    is   from   the   time   no    man's   mind   runneth    to   the    con- 
trary,. 27. 
If  a  be  that  if  he  find  any  -noil     within   his  manor  that  he 

shall  have  tin  in  as  his  own,  the  prescription  is  void,  267 
Of  a  country  non  decimando  is  good,  where  not,  2S4. 
A  single,  man  in  a  town  cannot  prescribe  to  be  discharged  of  the  tithes 


Index.  397 

of  corn  and  grass,  unless  he  can  prove  that  he  recompenseth  it  in  an- 
other way,  28  |. 

piritual  court  allow.-,  of  different  times  in  creating  a  prescription, 

305.     See  Statute. 
Presentatidn :  The  right  of  presentation  to  a  church  is  a  temporal    in- 
heritance, 1S9,  215. 
It  there  be  joint  tenants,  or  tenants  in  common  of  the  patronage,  and 

they  vary  in  presentment,  the  ordinary  is  not  bound  to  admit    any 

of  their  clerks;  and  if  six  months  pass,  he  may  presenl  by  lapse,  but 

he  may  not  present  within  six  months,  197. 
If  there  be  coparceners,  the  ordinary  is  bound  to  admit  the  clerk  of  the 

eldi    1    ister,  197. 
And  if  the  1  nee  may  present,  and  so  may  her 

husband,  w\m  is  tenant  by  the  curtesy,  197. 
But  at  the  next  avoidance  the  next  sister  shall  present,  and  so  by  turns 

one  sister  after  another,  197. 
Parceners  may  agree  to  present  by  composition,  197. 
What  presentment  the  king  shall  have  by  his  prerogative,  198. 
Ordinary  is  not  hound  to  admit  the  clerk  of  the  eldest  coparcener,  but 

where  she  presents  in  her  own  name,  19S. 
A  church  is  not  litigious  but  where  two  present  by  different  titles,  19S. 
If  the  patron  make  default  in  presenting,  the  bishop  shall   present;   and 

if  the  bishop  present  not  within  six  months,   then   the   metropolitan 

shall  present;   and  if  he  neglects  to  present,  then  it  shall  go  to  the 

king.  212. 
If  the  church   falls   to   the   bishop  by  lapse,  yet    if  the  patron   present 

before  the  bishop  puts  in  his  clerk,  then  the  patron  shall  enjoy  his 

presentment,  212. 
So  likewise  if  it  falls  to  the  metropolitan,  213. 
The  right  of  presentation,  and  when  a  church  shall  be  said   to  be  void, 

belongs  to  the  king  and  his  laws  to  determine,  216. 
When  the  king  presents  not  to  a  benefice  the  ordinary  may  put  in  a 

deputy  to  serve  the  cure,  217. 
Prohibition:  Will  lie  where  a  man  is  sued  in  the  spiritual  court  for  tithe 

of  wood  above  twenty  years'  growth,  93,  278. 
If  an  action  is  brought  for  breach  of  a  promise  in   the   spiritual  court,  a 

prohibition  will  lie,  179 
'  If  a  man  bequeath  to  one  another  man's  horse,  and  the  spiritual  court 

thereupon  maketh  process  to  execute  that  legacy,  a  prohibition   lies, 

-97- 
And  if  a  man  sell  his  land  for  100/.  and  he  is  sued  afterwards  in  spiritual 

court  for  tithes  of  said  \<ol.  a  prohil  .  297. 

Where  a  prohibition  will  not  lie,  although   the  spiritual    court  will  not 

allow  a  pi  1 
Will  nol  lie  t<>  the  ecclesiastical  court  when  the  executor  of  a  parson  is 

sued  there  for  dilapidations,  315- 
Promise:  A  man  can  have  no  action  upon  a  mule  or  naked  promise,  17'.. 
If    a  promise    is    made    to    an  university  or  a  city,  the    party  making 


398  Index. 


the  promise  shall  not  be  bound  by  it  if  he  intended  not  to  be  bound, 
176. 
If  I  promise  another  10/.  for  that  he  has  builded  me  an  house,  no  action 

lies,  because  the  consideration  is  past,  179. 
But  if  there  had  been  a  precedent  request  to  build  the  house  On  the  part 
of  him  who  made  the  promise,  the  action  would  lie,  although  the  con- 
sideration was  executed,  179. 
Purchaser :  It  seems  that  a  purchaser  for  a  valuable  consideration  will  be 

relieved  in  chancery  against  latent  incumbrances,  149. 
Purveyance  :  Abolished,  232. 
3uare  imp  edit :  If  the  incumbent  is  out  of  the  realm,  a  quare  itnfedit  will 

lie  against  him,  214. 
Reasonable  Part;  When   children   are  intitled   to    their  reasonable    part 
within   the   city  of  London,   province   of  York,  and   principality  of 
Wales,  225. 
Receiver :  Where  the  acts  of  a  receiver  shall  bind,  and  where  not,  235. 
Rccoverors  :  May  avow  and  justify,  75. 
Recovery  Common:  The  manner  of  suffering  it,  6S. 

It  is  a  bar  to  the  tail,  on  account  of  the  supposed  recompense,  69. 
Is  good  in  conscience,  69. 

The  origin  of,  supposed  to  be  in  the  reign  of  Edward  the  Fourth,  76. 
Has  been  countenanced  by  the  judges,  76. 

If  disseisor  makes  a  gift  in  tail,  and  the  disseisee  releases  his  right  to 
the  donee,  and  a  recovery  is  suffered  against  the  donee,  it  is  good,  81. 
Cannot  be  suffered  of  an  annuity,  but  may  of  rent,  SS. 
Release  :  Good,  and  where  not,  27. 
Religion :  The    disabilities   attending    entering   into    religion    are    taken 

away,  245. 
Remainder  :  If  a  man  makes   a  release   to   another  for  term  of  life,  and 
after  he  confirms  his  estate  for  term  of  life  to  remain  after  his  death  to 
another  and  his  heirs,  the  remainder  is  void,  159. 
But  if    a  lease  is  made  to  a  man  for  term  of  another  man's  life,   and 
after  the  lessor  confirms  the  land  to  the  lessee  for  term  of  his  own  life 
the  remainder  over  in  fee,  the  remainder  is  good,  160. 
No  grant  can  be  made  but  to  him  that  is  party  to  the  deed,  except  it  be 
by  way  of  remainder,  160. 
Remitter :  If  land  descends  to  him  that  has  right  to  it  before,  he  shall  be 

remitted  to  his  better  title  if  he  will,  22- 
Rent:  If  land  and  rent  come  into  one  man's  hand,  the  rent  is  extinct,  32, 

153- 

If  rent  is  granted  to  a  man  in  fee  to  perceive  of  two  acres  of  land,  and 
after  the  grantor  enfeoffs  the  grantee  of  one  of  the  acres,  rent  is  ex- 
tinct, 146. 

Cannot  be  granted  without  deed,  148 

A  rent  charge  maybe  apportioned  by  the  act  of  the  party,  148. 

Rent  service  may  be  apportioned,  148, 

Where  part  of  the  land  descends  to  the  grantee  of  a  rent  charge,  there 
may  be  an  apportionment,  151. 


Index. 


399 


A  man  by  the  common  law  may  have  remedy  for  rent  by  distress  or  as- 
sise, 153. 
Replevin  :  A  man  may  have    a    replevin    for   taking   a    distress    without 
cause,  123. 
Where  boasts  are  impounded  the  owner  may  sue  a  replevin  ;   and  if  the 
issue  is  found  against  the  distrainer,  he  shall  yield  damages,  i-ji- 
Rescue:   If  a  distress  is  taken  without  cause,  the  owner  may  rescue  it  be- 
fore it  is  impounded,  123. 
Reservation  :  No  reservation  of  a  rent  can  be  without  deed;  and  if  a  gift 
in  tail,  or  a  lease  for  term  of  life  is  made,  remainder  over  in   fee,  re- 
serving a  rent,  the  reservation  is  void,  126. 
If  cestui  que  use  makes  a  lease  for  term  of  years,  or  for  term  of  life,  or  a 

gift  in  tail,  reserving  a  rent,  the  reservation  is  good,  127. 
A  reservation  of  the  profits,  or  any  part  of  the  profits,  as  the  grass,  wood, 
etc.,  is  void,  166- 
Residence:  Of  clergyman  is  required  by  the  canon  common  and  statute 

law,  336. 
Restitution:  Where  it  shall  be  made,  125,  243,  245,  247. 
Return  :  In   a  writ  of  annuity  against  a  parson,  the  common    return    is 
quod  clcricus  est  benejiciatus  non  habens  laicum  feodum  ubi potest  sum- 
moueri,  215. 
A  bailiff  of  the  lord  of  a  franchise  may  be  punished  for  a  false  return, 
230. 
Right  of  Action  :  Cannot  be   given  or  granted   to  any  other  but  to   the 
tenant  of  the  ground,  or  him  that  has  the  reversion  or  remainder,  27. 
Serjeant  at  Law  :  Is  sworn  to  give  counsel  according  to  law,  1 19. 
Sheriff:  Where  the  sheriff  shall  be  amerced  for  a  bad  return  by  the  under- 
sheriff,  230. 
Where  he  shall  be  punished  or  amerced  for  the  wilful  escape  of    the 

gaoler,  230. 
Cannot  let  his  bailiwick  or  wapentakes  to  farm,  231. 
But  if  he  does,  £>r.  Whether  he  may  be  charged  for  the  misdemeanour 

of  his  servants,  232. 
If  upon  summons  in  a  praecipe  quod  reddat,  the  sheriff,  upon  informa- 
tion of  the  demandant,  summons  the  tenant  in  another  man's  land, 
the  tenant  shall  be  excused.  255. 
Statute:   Against  Cod's  law,  is  void,  15. 
Is  made  by  king,  lords,  and  commons,  35. 
A  prescription  prevails  not  against  a  statute,  79. 

Bui  a  statute  which  is  in  the  affirmative  may  be  prescribed  against,  79. 
So  may  a  statute  in  the  negative,  which  is  in  affirmance  of  the  common 

law,  79. 
But  a  statute  which   is  introductive  of  a  new  law  cannot  be  prescribed 

against,  79. 
Many  times   the   intent  of  the   letter  shall  be   taken,   and   not  the  bare 

letter,  S3. 
But  no  intent  can  be  taken  against  the  express  words  of  the   statul 
Statute  de  Donis :  Said  to  be  made  from  singularity  and  presumption,  72. 


4-00  Index. 

Statute  Merchant :  When  ordained,  231. 

Statute  Staple:  When  ordained,  231. 

Strays  ;  If  l:iey  are  proclaimed,  are  forfeited;   if  not  claimed  within  a  year 

and  a  day,  no,  266. 
Tenant  in  tail  after  Possibility,  etc.  :  Not  punishable    for  waste    by  the 
law,  101. 
But  may  be  restrained  in  equity  from  committing  wilful  and  malicious 

waste,  101. 
Is  in  fact  only  tenant  for  life,  102. 
If  he  aliens  in  fee  by  a  forfeiture,  102. 

If  he  makes  default  in  a  praecipe,  the  donor  shall  be  received,  102. 
If  lands  are  given  to  a  man  and  his  wife,  and  the  heirs  of  their  two 
bodies,  and  one  dies  without  heir,  the  survivor  is  tenant  in   tail  after 
possibility,  104. 
Theft:  Of  what  theft  may  be  committed,  247. 
Tithes:  Are  not  due  of  trees  of  twenty  years'  growth,  2S1. 
Due  by  what  law,  279,  2S0. 

When  they  first  began,  and  by  whom  they  were  first  granted,  279. 
Are  of  three  sorts,  pnedial,  mixt  and  personal,  285. 
Praedial,  what,  285,  287. 
Mixt,  what,  2S5. 

Of  trees  and  grass,  their  diversity,  2S6. 
Tithe  of  lambs  does  not  discharge  the  payment  of  wool,  for  it  is  another 

increase,  2S8. 
Are  payable  by  the  buyer,  not  by  the  seller,  289. 
Are  not  due  of  coal,  or  tin,  except  by  custom,  292. 
Personal  tithes  are  now  scarce,  any  where  paid  in  England,  unless  for 

mills,  or  fish  caught  at  sea,  293. 
Are  not  due  of  gifts,  though  they  be  after  sold,  293. 
Are  not  due  of  lops  of  trees  of  twenty  years'  growth,  295. 
Nor  of  the  bark,  295. 

In  extra-parochial  places  belonging  to  the  king,  333. 

Before  the  division  of  parishes,  it  seems  a  man   might  have  paid  his 
tithes  to  what  church  he  would,  333. 
Traitor:   May  dispose  of  his  goods  alter  the  treason  committed,  244. 
Transubstantiation  :   Declaration  against,  321. 
Treasure  Trove:  To  whom  it  belongs,  248. 
Trespass :  Where  a  man  may  justify  in  trespass,  46. 
A  special  action  of  trespass  may  be  brought  against  a  man  for  taking  a 

distress  without  cause,  123. 
If  a  sheriff  by  a  replevin  deliver  other  beasts  than  are  distrained,  an  ac- 
tion of  trespass  lies  against  him,  255. 
May  be  committed  with  force,  or  without,  27S. 
May  be  brought  for  stealing  a  horse,  277. 
Is  included  in  every  felony,  27S. 
Trial :  If  a  bond  hears  date  at  Madrid  in  Spain,  or  Bourdeaux  in  France, 
it  may  be  tried  here,  106. 


Index.  401 

Trover:  May  be  brought  for  goods  svhich  are  stolen  after  the  ofFender  is 

prosecuted,  278. 
Trusts  :  Arc  exactly  of  the  same  nature  as  uses  were  at  common  law,  169. 
Are  governed  nearly  by  the  same  rules  and  subject  to  every  charge  in 

equity  which  the  legal  ownership  is  subject  to  in  law,  169. 
Are  not  subject  to  dower,  169. 
Nor  to  escheat,  169. 

But  husbands  may  be  tenants  by  the  curtesy  of  trusts,  169. 
Uses:  Origin  of,  165. 
Inconveniencies  of,  167. 

An  use  in  esse  may  be  given  away  without  recompence,  171. 
Cannot  commence  without  livery  of  seisin,  172. 
Or  a  recompence  or  bargain,  172. 

Possession  and  use  joined  together  in  the  feoffor,  58. 
Villeinage :  Abolished,  155. 
Wager  of  Lavj  :  In  what  actions  will  lie,  28. 

Out  of  use,  but  not  out  of  force,  2S. 
Warranty  :  Where  it  bars,  and  where  not,  92,  260,  262. 
Waste:  If  a  lease   for  years  is  made   to  an  infant,  and  a  stranger  does 
waste,  the  infant  must  answer,  47. 
So  a.  feme  covert,  to  whom  a  lease  is  made,  is  liable  to  be  punished  for 
waste,  and  committed  by  a  stranger,  if  she  agrees  to  the  estate  after 
her  husband's  death,  48. 
How  punishable  in  tenant  for  term  of  years  for  life  in  dower,  or  by  the 
curtesy,  64,  71,  101,  in,  112. 
Will :  By  the  ancient  law  a  man  could  not  make  a  will  of  his  lands,  58. 
But  might  dispose  of  the  use,  58. 
The  ancient  law  abolished,  59. 
Words:  An  action  will  lie  at  common  law  for  calling  another  man  thief 

or  murderer,  324. 
But  not  for  calling  him  villain,  325. 
Wreck:  What,  261,265. 
Writ  of  Right  of  Dismcs  :  Where  it  will  lie,  185. 


July,  1880.] 


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Wilcox  (J.  A.)  The  General  Railroad 
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ary, 1874.     Svo.  5  00 

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Works  (JohnD.)  Indiana  Practice,  Plead- 
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Yaple  (Alfred).  Code  Practice  and  Pre- 
cedents, Especially  Adapted  to  Actions 
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press. 


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11 


INDEX  TO  MISCELLANEOUS   PUBLICATIONS. 


American    Politic?,     Critical     Review    of. 

Reemelin G 

American  Sta<e  Universities.     Ten  Brook.  6 

Anglo-Saxon   Literature.     Hart 3 

Anti-Slavery  before  1800.     Poole 5 

Army  of  the  Cumberland,  History  of  the. 

Van  Home 7 

Army  Life  under  Napoleon.     Doisy 2 

Art— 

Charcoal  Drawinj.     Robert G 

China    Painters,    Suggestions    to.      Mc- 
Laughlin  1 

China  Painting.     McLaughlin 4 

Pottery  Decoration.     McLaughlin 4 

Modeling  in  CIhj-.     Vago 7 

Perspective,   Elementary.     Keller  .'! 

Art  of  Pleasing.     A  Lecture.     Roy G 

Baby's  RpcoihI .' 1 

Bible  in  the  Common  Schools 1 

B'blioiheca  Americana 1 

Bhfjrip  h  ica  I — 

Coffin  (Levi).     Reminiscences 2 

Corwiu  (Thomas).     Rnssell G 

Filson    (John)  First   Historian  of  Ken- 
tucky.     Durrett 2 

Hayes  (Rutherford  P>.)     Lite,  Public  Ser- 
vices, etc 3 

Mansfield  (E.  D.)     Personal  Memories—  4 

Nerinckx  (Rev.  Charles).     Life 5 

Pioneer  Biographies.     McBride 4 

Birds  of  North  America.     Jasper 3 

Blaclc  Bass,  Book  of  the.     Hen-hall 3 

Book-keepi n<_',  Safety.     Mittenheimer 5 

Book-keeping,  Tabular.     Paddack 5 

Bicycle.      Park 5 

Camping  and   Cruising  in   Florida,     Hen- 
shall 3 

Caverns,  Celebrated  American.     Hovey....  3 

Chess  Openings,  Srnopsis  of.     Cook 2 

Church  History/Universal.     Alzog I 

Constitution  of  the  United  States 2 

Constitution,  Law  and  True  Construction 

of.      King.  4 

Crime  and  i he  Family.     Nash 5 

Drainage,  Land.     Kiippart 4 

Drunkards,  What  Shall  We  Do  With  ?    Ev- 
erts   2 

Education,  Common  School.     Currie 2 

Educational  Reformers,  Essays  on.    Quick.  5 

Egypt,  Ancient      Osborn .r> 

Elements  ol   Knowledge.     Biddle 1 

Elocution.      Hay  ward  3 

Family  Expense  Book 2 

Far  East.     Letters  from  Ejrypt  and  Pales- 
tine.    Burt 1 

Fiction — 

Generalship,   or    How    I    Managed    My 

Husband.     Roy 6 


Fiction— Continued.  Pa^e. 

Once  a    Year,  or  the   Doctor's    Puzzle. 

Swan c, 

Secret  of  the  Andes.      Hassan r<-k :', 

Sylvester's  Night's  Adventure.  Zschokke.  7 

French,  Elementary  Reader.     Brunner 1 

French,  Gender  of  Verbs.     Brunner 1 

French  Verbs.     Freeman 2 

Forestry,  American  Journal  of.     Hough...  3 

Forestry,  Elements  of.     Hough 3 

fossil  Brachiopod*.     Shaler 6 

Free  Institutions,  Nature  and  Tendency  of. 

Grimke 2 

Gold-fish.     Mulertt 5 

Grandma's  Christmas  Day.     Ellard 2 

Honduras,  Journey  in.      Huston 3 

Horses,  Law  of.      Hanover ?, 

Horse-shoeinjr,  Scientific.      Russell G 

Housekeeping  in  the  Blue  Grass :; 

Illinois,  Campaign  in  the, in  1778-9.   Clark.  1 
Indiana,    Vincennes,   Colonial    History  of. 

Law 4 

Indiana.    Wayne  Countv,  History.    Young.  7 
Indians.     See  Mound  Builders. 

Insect  Lives.      Ballard 1 

Jewish  Nature  Worship.      MacLean. 4 

Kansas,  Resources,  etc.     Griswold 2 

Karl  and  Gretchen's  Christmas.     Tilden  ..  G 

Kentucky  Fossil  Corals.     Davis 2 

Kentucky.     Lexington.     History.    Ranck.  G 

Kentucky,  Pioneer  Life  in.     Diake 2 

Kitchengarden,    Merry  Songs    for   Use   of. 

Hubbud 3 

Land  Drainace.     Klipparl 4 

Leatherwood  God.     Taneyhill G 

Leuends  of  the  West.      Hall 2 

Man,  Antiquity  of.     MacLean 4 

Mammoth    Cave.       Illustrated    Guide    to. 

Hovey  3 

Marshall  Family 5 

Mastodon,    Mammoth,    and    Man.      Mac- 
Lean l 

Measures,  Source  of.     Skiuner ■ G 

Mi  dical — 

Cornwell.     Chart  of  Eve  Symptoms 2 

DeBeck.     Hard  Chancre... 2 

Fletcher.       Cholera,  its    Characters 

etc 2 

Hygiene     and     Education     of     Infants. 

Walton 7 

Jackson.     The   Black  Arts  in   Med. cine.  .'1 

Lloyd.     Chemistry  of  Medicines 4 

Lloyd.     Elixirs,  their  Formulas,  Prepara- 
tion, etc 4 

Lloyd.     Drugs,  etc.,  of  North  America...  4 

Medical  Questions 5 

Minor.      Erysipelas  and  Child-bed  Fever.  5 

Minor.     Scarlatina    Statistics 5 

Physician's  General  Ledger 5 


12 


PUBLICATIONS  OF  ROBERT  CLARKE  &  CO. 


Medical —  Continued. 

Physician's    Pocket-Case    Record    Pre- 
scription   Book 5 

Rives.      Chart  of  Cranial  Nerves 6 

Sattler.      History  of  Tuberculosis 6 

Tripler  and  Blackman.    Military  Surgery.  7 

Whittaker.      Physiology 7 

Williams.      Diseases  of  the  Ear 7 

Mission  Band   Exercises.     Tilden 6 

Monetary  Situation.      Horton 3 

Mosaic  Tabernacle.      Randall - 6 

Mound- Builders,  Indians — 

Captivity  with    the    Indians,   1755-1759. 

Smith 6 

Diary  of  a  Missionary  among  the  Ohio 

Indians.     Zeisberger 7 

Footprints  of  Vanished  Races.     Conant.  2 

Mound-Builders.      MacLean 4 

Mounds  of  the  Mississippi  Valley.    Carr.  1 
Ohio  Indians,  Expedition  against.     Bou- 
quet   1 

Ohio  Indians.      Some  Early  Notices  of. 

Force 2 

Our  Indian  Wards.      Manypenny 4 

Pre-Historic  Remains  in  Kentucky.   Carr 

and  Shaler 1 

Naf-Neff  Family.. 5 

Name  and  Address  Book 5 

National  Guardsman.     Phisterer 5 

North-West,  Discovery  of  the.     Butterfield.  1 
Ohio — 

Athens  County.     History,     Walker 7 

Champaign  and  Logan  Counties.     His- 
tory.    Antrim 1 

Cincinnati   Organ.     Nichols 5 

— Tyler-Davidson  Fountain 7 

— Waterworks.     Bell 1 

Columbus.     History.     Studer 6 

Coshocton  County.     History.    Hunt 3 

Green     Township,     Hamilton      County. 

Reemelin 6 

Historical  Collections.    Howe 3 

Journal  of  Captain  Trent  to  Pickawillany.  7 

Leatherwood  God.      Taneyhill 6 

Ohio  Country,  Journey  to  the.     May  5 

Ohio  Valley  Historical  Miscellany 5 

Ross  County.     Pioneer  Record.    Finley.  2 

Old,  Old  Storv.     A  Lecture.    Roy 6 

Olden  Time  (The).     Craig 2 

Our  Barren  Lands.     Hazen 3 

Penciled  Fly  Leaves.     Piatt 5 

Phonograph;; — 

American  Reporter's  Guide.     Longley...  4 
American      Phonographic      Dictionary. 

Longley 4 

Compend  of  Phonography.     Longley 4 

Eclectic  Manual  of  Phonography.     Long- 
ley ..- 4 


Phonography — Continued. 
Every  Reporter's   Own  Shorthand   Dic- 
tionary.    Longley 4 

Phonographic  Chart.      Longley 4 

Phonographic  Reader  and  Writer.   Long- 
ley ; 4 

Writing  Exercises.      Longley 4 

Poetry — 

Andre  (Major).     The  Cow  Chase 1 

Gallagher  (W.  D.)     Miami   Woods,  and 

other  Poems 2 

Jordan  (D.  M. )      Rosemary  Leaves 3 

Prentice  (G.  D.)     Poems... 5 

Piatt's  Children   Out-of-Doors 5 

Stanton  (Henry  T.)      Jacob  Brown,  and 

other  Poems 6 

Stanton  (Henry  T.)   The  Moneyless  Man, 

and  other  Poems 6 

Venable  (W.  H.)     June  on  the  Miami...  7 

Venable(W.  H.)      Melodies  of  the  Heart.  7 

Politics  as  a  Science.      Reemelin 6 

Prices,  Prophecies  of  Ups  and  Downs  in. 

Benner 1 

Progressive  Croquet.      Devereux 2 

Progressive  Euchre.      Irwin 3 

Prose  Miscellany.      Biddle 1 

Reptiles  and  Bachtrachians  of  North  Amer- 
ica.     Garman 2 

Romance  of  Western  Historj'.      Hall 2 

St.  Clair  Papers 6 

Shakespearean  Commentators.      Morgan...  5 

Shakespearean  Myth.      Morgan 5 

Silver  and  Gold,   and   Redemption.      Hor- 
ton   3 

Silver  an  Internatioaal  Issue.      Horton 3 

Some  Ancient  Melodies,  etc.      Royse 6 

Sorghum,  its  Culture,  etc.      Collier 2 

Spanish  Americans.      Four  Years  among. 

Hassaurek 3 

Speeches.     Daniel  W.  Voorhees 7 

Spinoza.     Smith 6 

Sportsman's  Hand-Book.      Park 5 

Stage  (The).     Murdoch 5 

Tally  Book  for  Lumber  Dealers.     Webb 7 

Theosophy.     Nature  and  Aim.      Buck I 

— Secret  Docrines.     Buck 1 

Vespucci.     Force 2 

Vicksburg  Campaign.     Reed 6 

Vineyard  Culture  Improved.      Du  Breuil...  2 
War    of    1812    in     North-western     States. 

Hatch 3 

War   of  1886    between  the   United   States 

and  Great  Britain.     Reed 6 

Washington-Crawford  Letters.    Butterfield.  1 

Waterworks,  Cincinnati.     Bell 1 

Weather  (The),  its  Changes,  Forecasts,  etc. 

Bassler  1 

Winemaker's  Manual.     Reemelin 6 


University  of  camforni/ 

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